The Supreme Court and the Bill of Rights
The role of the United States Supreme Court is described in remarkably brief fashion in the Constitution. Whereas Articles I and II of the Constitution spell out in considerable detail the responsibilities of the legislative and executive branches, Article III describes the judicial branch only in the most general terms: “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.” As a result, the powers of the Supreme Court have evolved over time and are based primarily upon legal precedents (decisions which form the basis for future decisions).
The most important function of the Court is that of judicial review. Judicial review is the right of the Court to
act as the final determiner of whether a law violates the Constitution or
not. As Chief Justice John Marshall
wrote in the case of Marbury v. Madison (1803):
It is the “duty of the judicial department to say what the law is … a law
repugnant to the constitution is void.”
This concept is not expressly stated in the Constitution; however,
The size of the Supreme Court is not specified in the Constitution. The Judiciary Act of 1789 established the size of the Court as “a chief justice and five associate justices.” In 1801 the size of the Court was reduced to five justices to prevent the new president, Thomas Jefferson, from being able to appoint a replacement for a retired justice. The increasing activity of the Court led to its increase to seven justices in 1807 and nine in 1827. During the Civil War era, the Court was briefly increased to ten and then decreased to seven. The current nine person Supreme Court was established in 1869 and has remained at that number since. In 1937 President Franklin Roosevelt attempted to increase the size of the Court; however, this plan was strongly criticized as “Court-Packing” for political purposes and even failed to win the approval of an overwhelmingly Democratic Congress. If a justice dies or resigns, the Court continues to function until a replacement is confirmed unless the number of judges falls below the number of six.
The Constitution does spell out the method of selection for all federal justices. Justices are appointed by the president with the consent of the Senate and serve for life. They can be removed from office only through the impeachment process for treason, bribery, or other high crimes and misdemeanors. Judges may, of course, resign; however, many Supreme Court justices have chosen to remain on the Court through quite advanced ages, even when they were no longer able to completely fulfill all of their responsibilities. For example, Justice William O. Douglas was appointed to the Supreme Court by President Franklin Roosevelt in 1939 and served until ill health finally forced him to resign in 1975 at age 77. His 36 years on the Court are the longest tenure of any justice in history. Justice Oliver Wendell Holmes served until he was 90 before his resignation in 1932.
There are no expressed qualifications for a Supreme Court
justice, although most have had previous experience as state or federal
judges. Every justice has had a law
degree or practiced law.[2] Many of the justices have had previous
political as well as judicial experience.
One former president, William Howard Taft, served as chief justice from
1921-1930. Chief Justice Earl Warren
(1953-1968) was the governor of
The current Supreme Court consists of Chief Justice William Rehnquist (who was originally appointed to the Court by Richard Nixon and nominated to be chief justice by Reagan); John Paul Stevens (appointed by Gerald Ford); Sandra Day O’Connor, Antonin Scalia, Anthony Kennedy (appointed by Reagan); David Souter, Clarence Thomas (appointed by George Bush); Ruth Bader Ginsburg, and Stephen Breyer (appointed by Bill Clinton). The oldest current justice is Stevens (born 1920) and the youngest is Thomas (1948). It is expected that President Bush may have the opportunity to appoint three or more justices during their first term of office as Justices Rehnquist, Stevens, and O’Connor have hinted at retirement.
The Court has original
jurisdiction on disputes between states and cases involving the federal
government and a state. The Court very
rarely hears original jurisdiction cases.
Usually cases arrive on appeal from one of the 13 Federal Appeals Courts
(Indiana,
Several cases heard every year deal with relations between the national or state governments and Indian tribes. These usually fall under the category of disputes relating to treaties or the regulation of commerce. In 1831 the Court ruled that Indian tribes did not have the status of foreign nations and therefore could not appeal directly to the Court.[3] Through appellate jurisdiction, however, the Court has ruled that states have only very limited powers over internal matters that occur exclusively on Indian lands. For example, states may not tax Indian reservation lands or Indian income from activities carried on within the boundaries of a reservation.[4] The “unique and limited” sovereignty that Indian tribes possess has led to the proliferation of gambling casinos on Indian lands, which have been ruled as beyond the scope of state laws prohibiting such activities.
Cases involving the violation of a federal law must begin
in
The Supreme Court receives approximately 5,000 cases per year and gives a full hearing to only about 115.[6] A request that the Court hear a case is known as a writ of certiorari. Certiorari petitions are usually reviewed by the Court’s law clerks who then summarize the issues of the case and make recommendations to the justices as to whether the Court should hear the case or not. Four justices must agree to hear a case in order to “grant certiorari.” Even if the justices agree to grant certiorari, there is no guarantee that the case will receive a full hearing. Many cases are decided on a per curiam basis in which the justices will evaluate the written material and issue a short decision under the name of the entire court. No written explanation or justification is included in a per curiam decision. If the justices decide to grant a case a full hearing, it is then scheduled for oral argument before the Court. Prior to oral arguments, attorneys for each side submit an extensive legal brief. The brief describes the circumstances of the case and the legal arguments as to why their side should prevail. Briefs are extremely important because the time given for oral argument before the Court is extremely limited (in most cases only thirty minutes per side) and can often be interrupted by the judges’ questions. After the oral arguments are completed, the justices then meet to decide the case.
Cases are usually decided upon precedents set down by the Court’s decisions in previous cases. Justices examine similar cases and try to apply the principles of these decisions to the case at hand. While lower courts are obligated to follow precedents set by the Supreme Court, the Court itself is not and there are cases where the Court has issued a decision that directly contradicts a previous decision, but this is extremely rare.[7] The belief that previous decisions should not be overruled is known as stare decisis, which literally means, “let the decision stand.” The concept of stare decisis is crucial to the operation and coherency of the legal system. Supreme Court Justice Benjamin Cardozo wrote in 1921: “The labor of judges would be increased almost to the breaking point if every past decision could be reopened in every case, and one could not lay one’s own course of bricks on the secure foundation of the courses laid by others who had gone before him.”[8] Because of this judicial respect for precedent, attorneys attempt to build their arguments upon legal precedents that support their position. In court, citing precedent is the most important argument that can be made in favor of one’s case.
Supreme Court decisions are made by majority vote and are accompanied by a formal written opinion of the Court in which the case is summarized and the legal reasoning of the decision is explained. If the chief justice votes with the majority, he or she may either write the opinion themselves or assign it to one of the other justices who have voted with the majority. If the chief justice is not in the majority, the senior justice (in terms of service on the Court) may write the opinion or assign it to another justice in the majority. Once an opinion is drafted, it is circulated to the other justices. If approved, this opinion then becomes the official written opinion of the Court and has the force of case law.[9] A justice who agrees with the reasoning of the opinion may simply sign on to the opinion; however, a justice may agree with the Court’s decision but disagree as to the reasoning of the written opinion. The justice may then submit a concurring opinion that states his or her own reasoning. Justices who disagree with the Court’s decision usually write their argument in a dissenting opinion, which explains why they believe the Court’s decision is in error. Justices may combine on a dissent or each dissenting justice may write a separate dissenting opinion. To complicate matters further, a justice may concur (agree) with part of the decision and dissent from another part. Although it is rare, a single Court decision might produce nine separate opinions, but only the opinion of the Court has the force of law. Justices are free to change their minds in the course of producing a written opinion, so each writer tries to write in a way that will attract the support of other justices to his or her point of view. In the course of writing an opinion, it is possible for what began as a dissenting opinion to become the decision of the Court. For this reason, in a close decision, the most reluctant justice on the majority side may be assigned the duty of writing the decision so as to keep them with the majority. Decisions of the Court are usually announced on Mondays if the Court is finished hearing oral arguments for the term (which runs from October through early June), although some decisions will be announced on Tuesdays and Wednesdays while the Court is still hearing arguments on other cases.
On the current Court, Justices Rehnquist, Scalia, and
Thomas usually take conservative positions, while Stevens, Souter, Ginsburg,
and Breyer are more liberal. As a
result, in many cases, Justices O’Connor and Kennedy hold the decisive
votes. The Court headed by Chief Justice
Earl Warren (1953-1969) was identified with many controversial liberal
decisions. After
The underlying concept of our government is that ultimate
authority or sovereignty rests in
the hands of the people; however, the framers of our constitution were
extremely afraid of what they would have called “mob rule.” They were distrustful of “too much democracy”
every bit as much as they had opposed what they believed was the excessive unchecked
power of
Our Bill of Rights, whose implied inclusion was vital to
the ratification of the Constitution in 1787, has its antecedents in the
struggle of the British people to negate the absolute sovereignty of the
monarchy. This struggle began in 1215
with the Magna Carta. Medieval kings were,
of course, absolute monarchs in that their word was law unchecked by any other
legal power (hence the use of the term sovereign as a synonym for
monarch). When King John angered the
leading barons of
The refusal of King Charles I to rule under the
limitations of the Magna Carta led to the English Civil War in 1642. The victory of Parliament over Charles I (who
was executed in 1649) led to the brief period of the
While the
The very purpose of the Bill of Rights was to withdraw certain subjects from the vicissitudes (unpredictable changes) of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.[12]
Thus, the Bill of Rights protects those liberties that are not subject to the will of the majority. The role of the Supreme Court is often to determine whether the actions of an elected legislature violate the individual rights of a citizen.
It is important to realize that the Bill of Rights protects individuals against government action but does not protect against acts by other individuals. Public school students enjoy some degree of freedom of expression under the First Amendment because the school is tax-supported and therefore an agent of the government. Private school students do not share these freedoms because their school cannot be construed as an agent of the government. It is also important to understand that the wording of the Bill of Rights is extremely vague. The only protection of freedom of speech that is explicitly stated in the First Amendment is that “Congress shall make no law… abridging (restricting) the freedom of speech.” This leaves many questions unanswered. Is an individual’s right to freedom of speech unlimited? May a person threaten to kill another person? May a person make statements about another person that are untrue and harmful? Does a person have the right to be obscene? These questions and many more are left unanswered by the brief wording of the First Amendment. Ultimately, it is for the courts to decide the meaning of the First Amendment and apply it to real life situations. Throughout the history of the Supreme Court, the justices have expanded upon the meaning of the Bill of Rights through their decisions, establishing precedents that become case law.
There are many exceptions to
a literal interpretation of the Bill of Rights.
Although some justices such as Hugo Black (1937-1971) have maintained
that “no law means no law,” the Court has upheld (allowed) many
restrictions upon freedom of speech when that speech conflicted with other
rights or important governmental objectives.
This principle is well illustrated in the case of Schenck v. United States (1919).
During the First World War, Congress passed the Espionage Act, which
made it illegal to “cause insubordination, in the military and naval forces of
the
We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic…. [Schenck’s words were] used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.
In the Schenck decision the Court thus affirmed an important principle. The rights of the First Amendment are subject to the circumstances and context of their use. It is for the Court to evaluate these factors.
In 1822 John Barron brought suit against the city of
At the time the Constitution was written, Americans had a greater fear of their national government usurping its power than they feared excessive state power. Following the Civil War, however, Congress also sought to protect citizens (most notably former slaves in the South) from abuse by state and local governments. The Fourteenth Amendment (ratified in 1868) states that:
No State shall make or enforce any law which shall
abridge the privileges or immunities (rights) of citizens of the
The author of the Fourteenth Amendment, Representative
John A. Bingham (R-Ohio), clearly intended to extend the guarantees of the Bill
of Rights against state action. In 1871
Bingham stated: “the privileges and immunities of citizens of the
Despite the obvious intent of the Fourteenth Amendment, the
Supreme Court chose to interpret it in the narrowest manner possible. When
so great a departure from the structure and spirit of our institutions; when the effect is to fetter and degrade the State governments by subjecting them to the control of Congress, in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character; when in fact it radically changes the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people…. we do not see in those amendments [13-15] any purpose to destroy the main features of the general system.
[A ruling against Louisiana] in these cases, would constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of this amendment.
Although one could certainly argue that such a
fundamental shift in the relationship between the federal government and the
states was exactly what the authors of the Fourteenth Amendment intended, the
decision of the Court in the Slaughterhouse
Cases effectively negated the effort to extend the protections of the Bill
of Rights to state actions. This failure
was illustrated in the case of Joseph Hurtado in 1884. Hurtado had been sentenced to death for murder
in
Although the Court did not initially adopt Harlan’s incorporation theory in Hurtado, a decade later it ruled that states could not take private property without just compensation in Chicago, Burlington & Quincy Railroad Co. v. Chicago (1897), thus ruling for the first time that the Fourteenth Amendment required states to abide by a portion of the Bill of Rights. The railway decision only applied to the takings clause of the Fifth Amendment and did not extend to other rights; however, it set the precedent for further incorporations in the twentieth century.
In 1925 the Court ruled that the protection of freedom of
speech contained in the First Amendment was applicable to the states, and in
1940 incorporated the guarantee of freedom of religion.[15] Incorporation was still, however, done on a
selective basis. In 1908 the Court
declined to overturn the conviction of a man who had refused to testify in his
criminal trial and the judge had instructed the jury that this refusal could be
considered as evidence of his guilt (the Fifth Amendment’s guarantee against
self-incrimination clearly prohibited such instructions in federal criminal
trials).[16] Another Fifth Amendment incorporation case
reached the Court in 1937. Frank Palko
had been accused of murder in
The right to trial by jury and the immunity from prosecution except as the result of an indictment may have value and importance. Even so, they are not of the very essence of a scheme of ordered liberty. To abolish them is not to violate a “principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.”
Palko eventually was executed in the electric chair.
The Court has continued to selectively incorporate portions of the Bill of Rights to this day, and during the 1960s many portions were made incumbent upon the states. In 1969 the Court overturned the Palko decision, maintaining that states must follow the double-jeopardy provisions of the Fifth Amendment.[17] Despite this gradual march toward total incorporation, the Court has still refused to return to the intent of the authors of the Fourteenth Amendment and simply state that all portions of the Bill of Rights apply to the states. The closest they have come was in 1947 when four justices advocated total incorporation in a dissenting opinion, maintaining that the purpose of the Fourteenth Amendment was “to extend to all the people of the nation the complete protection of the Bill of Rights.”[18] Remaining unincorporated today are the Second and Third Amendments, the Fifth Amendment requirement of a Grand Jury, the Sixth Amendment requirements of twelve person juries and unanimous verdicts, the Seventh Amendment guarantee of a jury trial in civil cases, and Eighth Amendment requirements for reasonable bail and fines. In areas other than these, the Fourteenth Amendment now serves as the means of applying the protections of the Bill of Rights against actions by state and local government. For this reason, many cases that reach the Supreme Court involve the Fourteenth Amendment as well as one or more portions of the Bill of Rights.
Congress shall make
no law respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging (restricting) 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 (correction) of grievances
(complaints).
The Schenck case firmly established that the freedom of speech is not absolute. Other subsequent cases have helped define what forms of speech the First Amendment protects and what forms fall outside of its scope.
One of the most difficult decisions concerning the
freedom of speech is the definition of speech itself. In Stromberg
v. California (1931) the Court ruled that speech included means of
expression beyond simple spoken words.
In the Red Scare hysteria following World War I,
The Supreme Court has even held that political contributions are a protected form of speech. In Buckley v. Valeo (1976) the Court ruled that while the government may limit the amount of money an individual contributes to a political campaign, it may not limit a candidate’s contributions to his/her own campaign. In addition, the government may not limit the ability of non-candidates to spend money to “inform the electorate.” Limits on contributions to individual campaigns, known as “hard money” has led to the growth of the use of “soft money” in political campaigns. Limited to direct contributions of $1,000 per candidate, individuals may contribute unlimited sums to political action committees. These political action committees (or PACs) are then free to run advertisements attacking candidates, as long as they do not directly ask voters to support a specific candidate. Efforts to regulate soft money have been frustrated by the Court’s steadfast position that to deny a person the right to contribute to a political action committee is akin to depriving them of their freedom of speech.
Freedom of speech can even include the right not to speak. In West Virginia State Board of Education v. Barnette (1943) the Court struck down a state law requiring public school students to recite the pledge of allegiance to the flag.[22] Although few students objected to the flag salute, especially in the midst of the Second World War, the Court ruled that it could not be required. Writing for the Court, Justice Robert Jackson pointed out that the First Amendment serves to protect even unpopular causes: “…freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.”[23] In Tinker v. Des Moines (1969) the Court recognized that public school students possess the right to political expression as long as these activities do not disrupt the educational function of the school.[24]
In the case of Chaplinsky
v.
…the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.
In 1972 the Court ruled that laws could not make it a
crime to utter “fighting words” only toward a particular group of people. In an effort to prevent “hate crimes,” the
city of
The Court has also had to wrestle with cases in which the exercise of free speech threatened to provoke a public disturbance. In 1946 a former Catholic priest, Arthur Terminiello, gave a speech in which he attacked Jews, blacks and former President Franklin Roosevelt but did not threaten any group with violence. Over 1,000 protesters gathered outside the hall in which he spoke and threw rocks through the windows in an attempt to disrupt the speech. The police arrested Terminiello under a city ordinance making it unlawful to aid in a breach of the peace. In a 5-4 decision the Court overturned Terminiello’s conviction on the ground that the First Amendment protected “provocative and challenging” speech. To allow the arrest of a speaker because of the violent behavior of his opponents would tend to create a “heckler’s veto” in which violence could be used to legally prevent the free expression of one’s ideas.[28]
Despite the ruling in the Terminiello case, two years
later the Court seemed to endorse the same “heckler’s veto” in Feiner v.
The same year as Feiner, the Court upheld laws making it a criminal offense to belong to the Communist Party, ruling that Congress could restrict speech in an effort to protect against groups that advocated the violent overthrow of the government. Because the Communist Party advocated revolution, its members could be convicted merely because they were members of such an organization: “the Government need not wait to act until the putsch is about to be executed and the plans are set for action.”[29] The Court modified this principle in Brandenburg v. Ohio (1969) when they ruled that the mere advocacy of violent means or the violation of the law could not be considered a crime unless they were likely to produce an immediate danger.
Another contentious issue in determining protected speech lies in the area of obscenity. In 1957 the Court ruled in Roth v. United States that materials judged to be obscene did not enjoy the protection of the First Amendment:
All ideas having even the slightest redeeming social importance—unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion—have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.
In Roth the Court defined obscenity as “whether to the average person,
applying contemporary standards, the dominant theme of the material taken as a
whole appeals to the prurient interest.”[30] The Court was careful to say, “sex and
obscenity are not synonymous,” and that minor portions of a work could not be
isolated and taken out of context. The Roth definition, however, did little to
provide a clear guide to determining exactly what was obscene. In 1964 the Court added that to be judged
obscene, materials had to be found “utterly without redeeming social
importance.”[31] In Miller
v. California (1973) a man was convicted of violating
An average person, applying contemporary community standards, would find that the work applies to prurient interest.
The work depicts or describes, in a patently offensive way, sexual conduct as specifically defined by state law.
The work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Miller differed
from the previous standard in that the “utterly without redeeming social
importance” portion of the 1964 definition was now replaced by the more
flexible language of lacking “serious literary, artistic, political, or
scientific value,” and local community standards would serve as the basis of
evaluating potentially obscene material.
In his majority opinion, Chief Justice Warren Burger wrote: “It is
neither realistic nor constitutionally sound to read the First Amendment as
requiring that the people of
In the last ten years the Court has seldom ruled anything
obscene; however, there has been an increasing effort to limit the amount of
sexually-oriented or violent content in the media that would be considered
offensive or vulgar by many, yet falls short of meeting the test for
obscenity. The power of the Federal
Communications Commission (FCC) to regulate the content of broadcast speech was
challenged in FCC v. Pacifica Foundation (1978). A
…if it is the speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection. For it is a central tenet of the First Amendment that the government must remain neutral in the marketplace of ideas. If there were any reason to believe that the Commission’s characterization of the Carlin monologue as offensive could be traced to its political content—or even to the fact that it satirized contemporary attitudes about four-letter words—First Amendment protection might be required. But that is simply not this case…. Because the broadcast audience is constantly tuning in and out, prior warnings cannot completely protect the listener or viewer from unexpected program content…. the government’s interest in the “well-being of its youth” and in supporting “parents’ claim to authority in their own household” justified the regulation of otherwise protected expression. The ease with which children may obtain access to broadcast material… justify special treatment of indecent broadcasting.
Noting that “words that are commonplace in one setting are shocking in another,” the Court ruled that the FCC had the power to require that potentially offensive content be broadcast at times that would lessen the likelihood that children would be in the audience. In 1994 the Court ruled that cable television could not be regulated under the same stringent criteria as broadcast stations, and an attempt by the government to regulate content on the Internet was ruled unconstitutional in Reno v. ACLU (1997).[33]
It is wise to keep in mind the caution contained in
Governments may establish reasonable restrictions as to the manner of speech in public areas or public forums. They may regulate the time and location of demonstrations and other activities as well as the noise that they generate. They may not, however, regulate or discriminate on the basis of the content of the speech. The purpose of the “open forum doctrine” is to ensure that government operates in an even-handed manner toward all groups seeking access to public property.
Political speech has always been afforded a greater degree of protection than has commercial speech. Until the middle of the twentieth century, commercial speech—mainly advertising—was considered to be outside of the scope of the First Amendment. Since the 1970s, the Court has held that pharmacies and attorneys could not be prevented from advertising their services, nor could liquor stores be prevented from advertising their prices.[34] The Court has ruled that governments have the right to protect consumers by regulating advertising that is deceptive or inaccurate.[35]
Like the freedom of speech, the freedom of the press to publish material is not absolute. Limitation on the freedom of the press to publish usually takes two forms. The first, prior restraint, refers to the ability of the government to prevent the publication of offensive material. The second deals with the ability to punish the press for what has already been published.
The first case to reach the Supreme Court testing the
power of prior restraint was Near v.
Minnesota (1931). Jay Near published
a small newspaper in
Justifiable prior restraint is extremely rare, as the
Court noted in the famous Pentagon Papers case, New York Times v. United States (1971); however, a case that did
fit the exception to the general prohibition against prior restraint was heard
in
In Near the
Court had clearly pointed out that publishers could be held liable for material
that they publish after it appears in
print. Statements that defame or harm the
reputation of an individual commit the offense of libel. Examples of libel
would include charges that an individual had been guilty of a crime or was
incompetent in his or her profession or occupation. Courts are free to award monetary damages as
compensation for the damage done to one’s character by libelous
statements. A person or publication
accused of libel may defend itself by proving that the accusations were true;
however, this is often difficult and expensive to accomplish. Libelous statements were among those cited in
Chaplinsky v.
The first major libel case to reach the Supreme Court, New York Times v. Sullivan (1964), arose
from the contentious struggle for civil rights during the 1960s. On
In
Another portion read:
Again and again the Southern violators have answered Dr. King’s peaceful protests with intimidation and violence. They have bombed his home almost killing his wife and child. They have assaulted his person. They have arrested him seven times—for “speeding,” “loitering,” and similar “offenses.” And now they have charged him with “perjury”—a felony under which they could imprison him for ten years…
Although neither of these statements mentioned Sullivan
by name, he contended that the word “police” referred to him as the
The New York Times admitted
that some of the statements contained in the paragraphs were not accurate
descriptions of the events that had occurred in
An
The ability of elected officials and public figures to prove actual malice was further weakened in Hustler v. Falwell (1988) when it was ruled that outrageously false accusations or humorously inaccurate parodies of public figures fell beyond the scope of libel protection. Larry Flynt, the publisher of Hustler Magazine, had been the frequent target of legal action. Hustler, an “adult men’s magazine,” was often condemned for its tasteless nudity and humor. The November 1983 issue of Hustler featured a “parody” of an advertisement for Campari Liqueur. Campari had run a national advertising campaign with a “first times” theme in which famous celebrities recounted their memories of the first time they drank the liqueur. Although the “first time” referred to the consumption of the drink, there was a heavy degree of sexual innuendo in the ads. Hustler’s parody of the Campari ads featured a well-known conservative minister, Jerry Falwell, who was nationally recognized as a leader of conservative political and moral causes. Copying the form and layout of the Campari ads, Hustler’s editors drafted an alleged “interview” with Falwell in which he stated that his “first time” was during a drunken incestuous encounter with his mother in an outhouse. The Hustler parody portrayed Falwell and his mother as drunk, and suggested that the minister was a hypocrite who preached only when he was drunk. In small print at the bottom of the page the ad contained the disclaimer, “ad parody—not to be taken seriously.” The magazine’s table of contents also listed the ad as “Fiction; Ad and Personality Parody.” Falwell sued to recover damages for libel, invasion of privacy, and the intentional infliction of emotional distress. A jury awarded Falwell $100,000 in compensatory damages, as well as $50,000 each in punitive damages for the intentional infliction of emotional distress by Hustler. In finding for Hustler, the Supreme Court ruled that the parody “could not reasonably have been interpreted as stating actual facts about the public figure involved.” Applying the principle of the Butts and Walker decisions, the Court held that the statements in regard to Falwell would have had to have been clearly represented as fact: “In order to protect the free flow of ideas and opinions on matters of public interest and concern, the First and Fourteenth Amendments prohibit public figures and public officials from recovering damages for the tort (action causing harm to another) of intentional infliction of emotional distress by reason of the publication of a caricature such as the ad parody.” The Court went on to note that a ruling for Falwell could place all political satire at the risk of libel proceedings:
Were we to hold otherwise, there can be little doubt that political cartoonists and satirists would be subjected to damages awards without any showing that their work falsely defamed its subject…. The appeal of the political cartoon or caricature is often based on exploitation of unfortunate physical traits or politically embarrassing events—an exploitation often calculated to injure the feelings of the subject of the portrayal. The art of the cartoonist is often not reasoned or evenhanded, but slashing and one-sided.
In line with this ruling, the Court has held that even candidates for public office have little protection from libel laws once they choose to become a candidate.[38]
Although the power of elected officials and public figures to pursue libel actions has been seriously limited, the Court has acted to preserve the protections afforded private citizens. In 1974 an attorney, Elmer Gertz, who was in the process suing a city of Chicago policemen on behalf of the family of a man who had been shot by the officer, was described by a publication as having a criminal record and being a communist. Maintaining that the charges were false, the attorney sued the publication. The magazine, American Opinion, sought to defend itself by maintaining that, as a result of the well-publicized lawsuit, Gertz had become a public figure. The Court rejected this claim, maintaining that, unlike an elected official or public figure, Gertz had not voluntarily subjected himself to public examination. The Court held that a private person “has relinquished no part of his interest in the protection of his good name, and consequently has a more compelling call on the courts for a redress of injury inflicted by defamatory falsehood.”[39]
Few areas of the Constitution have generated more
controversy that the establishment of religion clause. The First Amendment simply states that: “Congress
shall make no law respecting an establishment of religion, or prohibiting the
free exercise thereof….” The idea of
government-established churches was a common one at the time the Constitution
was written. An established church was
one that was supported by the government.
Many religious groups came to
At various times in English history those who dissented
from the Church of England were persecuted in various ways, including being
denied the right to vote or hold public office.
At the time of the revolution, nine of the thirteen states had
established religions of their own.[40] A year before the writing of the
Constitution,
A phrase commonly associated with the establishment clause is
that of “a wall of separation between church and state.”
The “establishment of religion” clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws, which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion.
It is important to note that the Court’s statement extends beyond the concept that government cannot favor one religion over another. The government may not give aid to a religious group even if it aids all religions equally.[41]
Just as the freedom of speech is not absolute, the Court has
had to make many difficult decisions in regard to religion. While the Court has held that the freedom to believe is absolute, it has permitted
governmental restrictions upon some religious practices. In 1890 the Court
denied a challenge by Mormons who claimed that federal law prohibiting polygamy
(simultaneous marriage to more than one person) in the
It was never intended or supposed that the amendment could be invoked as a protection against legislation for the punishment of acts inimical to the peace, good order, and morals of society…. However free the exercise of religion may be, it must be subordinate to the criminal laws of the country, passed with reference to actions regarded by general consent as properly the subjects of punitive legislation.[42]
This distinction between practice and belief was more recently upheld in Employment Division of Oregon v. Smith (1990).
The Court has also avoided an absolutist position on complete
separation between government and religious beliefs. The words “In God We Trust” appear on the
1. The act’s purpose must be secular, not religious.
2. The act’s primary effect must neither advance nor inhibit religion.
3. The act must avoid an “excessive entanglement” of government and religion.
Even this test includes many areas subject to interpretation that have been the subject of controversial judicial decisions such as the permissibility of religious objects on public property, a subject that the Court tackled in Allegheny County v. ACLU (1989).
Perhaps the most contentious establishment clause
decisions have been on the subject of prayer in public schools. Throughout most of
Schools have also been the source of establishment clause
controversy regarding the teaching of evolution as part of the science
curriculum. The famous “monkey trial” of
John Scopes in 1925 never reached the Supreme Court, but in 1968 the Court
struck down an
Governmental aid to private educational institutions
often raises First Amendment concerns when private schools are operated by
religious organizations. In Committee for Public Education v. Nyquist (1973)
the Court ruled that states could not reimburse parents for tuition paid to
parochial (religious) schools. The Court
has permitted other forms of governmental assistance to parochial students
under the theory that the assistance benefited the students rather than the
religious institution. For this reason,
states have provided transportation, special education services, remedial
education teachers, computers,
and textbooks to parochial school students.
The Nyquist decision was a
major obstacle in efforts to provide vouchers or tax credits to allow students
to attend private schools as an alternative to the public school system; however, in Zelman v.
Simmons-Harris (2003) the Court upheld a
Although not as controversial as the school decisions, some of the most difficult establishment clause decisions have emanated from conflicts between religious beliefs and state or federal laws. In Wisconsin v. Yoder (1972) the Court ruled that Amish parents did not have to comply with mandatory school attendance laws that required their children remain in school until age sixteen. Noting the “self-sufficient agrarian lifestyle” of the Amish, the Court ruled that the state’s ‘‘compelling governmental interest” in requiring public education did not outweigh the right of the Amish to practice their religious beliefs. In other cases, however, the Court has held this compelling interest test allows the government to interfere with the actions of religious groups. Under this principle, the Court ruled against the Amish in United States v. Lee (1982), holding that religious groups could not claim a constitutional objection to paying social security taxes. In Bob Jones University v. United States (1983) the Court supported the suspension of a religious college’s tax-exempt status because it refused to admit students who were married to a person outside of their race and expelled students who engage in “interracial dating.”
The First Amendment also protects the freedom of assembly and the right to petition the government. The right to peaceably assemble usually involves the right to hold public demonstrations under the public forum doctrine. The right to assemble is not absolute; however, the government may not use its power to regulate assemblies to limit or deny free speech rights based upon the content of that speech. The right to assemble on applies only to public property. Owners of private property (such as shopping malls) are free to deny demonstrators or solicitors access to their property.
The right to petition the government has been interpreted
both as a protection of the right to protest and to associate with others for a
common purpose. The Supreme Court first
recognized freedom of association in 1958 when the Court frustrated an Alabama
effort to discourage membership in the National Association for the Advancement
of Colored People by requiring that the organization make its membership list
public.[50] In Keyishian
v.
A well regulated
Militia, being necessary to the security of a
The right of individual citizens to possess firearms is a
constant factor in our national political debate. The
From the earliest days of American history, colonies maintained militias made up of citizen-soldiers to defend the colony against attack.[55] Many colonies had laws requiring all free males to possess firearms and ammunition and to serve in the militia when called upon. One reason for this requirement was that there was a strong prejudice against permanent, standing armies, which were seen as potential sources of abusive power. The lack of a strong national army was one of the weaknesses of the Articles of Confederation that was rectified by the Constitution, which gave Congress the right to maintain a national army. As a result of this provision, the future of the state militias was unclear and a major source of concern. Clearly the Second Amendment addresses this concern.
The remaining question is whether the Second Amendment confers only the right of states to retain their militias or an individual right to possess arms as well. In the Congressional debate over ratifying the Second Amendment, Massachusetts Congressman Elbridge Gerry maintained that the amendment applied only to militias. Not a single member rose to contend his assertion that “the right to bear arms” was limited to members of the state militia.[56] Only one Supreme Court case has ever extensively addressed the Second Amendment. In 1939 two men convicted of violating the National Firearms Act of 1934 appealed their conviction on the grounds that Congress had no right to pass legislation that infringed upon their right to bear arms. The men had been arrested for carrying an unregistered sawed-off shotgun across state lines. In United States v. Miller (1939) the Court upheld their conviction:
In the absence of any evidence tending to show that possession or use of a “shotgun having a barrel of less than eighteen inches in length” at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.
Supporters of gun control legislation interpret the Miller decision as ruling that the Second
Amendment only applies to the collective right of states to maintain militias.[57] Opponents of gun control read the decision
more narrowly, insisting that the Court only determined that sawed-off shotguns
were not related to a militia and that the Court would not extend this judgment
to apply to all firearms. As a result,
the precise meaning of Miller still
remains a hot topic of debate. Prior to
2001, no federal court had ever invalidated a gun-control measure on Second
Amendment grounds.[58] The Second Amendment is one of the few
portions of the Bill of Rights that has never been incorporated into the
Fourteenth Amendment. State and local
governments are free to enact gun-control measures without raising Second
Amendment concerns. In 1983 the Supreme
Court refused to hear an appeal of a case in which lower courts had upheld a
local ordinance banning the private possession of handguns in the town of
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.
The Third Amendment is the product of the years leading up to the Revolutionary War. The British Parliament passed several Quartering Acts that forced colonists to pay for the housing of British soldiers in the colonies. If sufficient public housing was not made available, troops could be housed in private homes.[60] This requirement was extremely unpopular and one of the specific grievances against the king enumerated in the Declaration of Independence.
No case regarding the quartering of troops in private homes has ever reached the Supreme Court; however, the amendment implies a general presumption of privacy that has been cited in several recent cases. Although a specific right of privacy is not mentioned in the Bill of Rights, Justice William O. Douglas cited the Third Amendment in a 1965 case invalidating a state law banning the sale of contraceptives to married couples.[61]
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 Fourth Amendment protects against “unreasonable
searches and seizures,” and puts forth two general requirements for the
government to conduct a search or to detain an individual, either for
questioning or arrest. The first general
requirement is that a neutral judicial official must issue a warrant authorizing the search or
arrest. The second requirement is that
warrants must be justified by probable
cause. Although probable cause is
not defined in the Constitution, it has come to be defined as a reliable reason
to suspect that a crime has been committed.
It is important to note the distinction between probable cause and
evidence. Evidence is far more specific
than probable cause. A warrant may be
issued, for example, if the police have a reasonable belief that the search of
a building will lead to collecting evidence of a crime. Implicit in the concept of the Fourth
Amendment is individual suspicion. Not only must a crime have been committed,
the police must have a reason to suspect a specific individual in order to
detain or search them. In 2000, however, the Court
ruled 5-4 running away at the mere sight of a law enforcement officer may be (in
light of other circumstances) justification for a brief “stop and frisk”
search.[62] In 1979, the Court overturned the conviction
of a bar patron for drug possession due to the lack of individual
suspicion. The police held a warrant to
search the bartender and the bar for drugs, but could not legally search all
patrons of the bar because they were not named in the warrant and there was no
probable cause that any individual patron was in possession of drugs.[63]
The Court has held that the Fourth Amendment applies whenever a person has “a reasonable expectation of privacy.” In 1967 the Court ruled that a person making a phone call from a telephone booth was protected from electronic eavesdropping because a person in that situation has a reasonable expectation that his/her comments will not be overheard.[64] A person would obviously have a greater expectation of privacy in his/her own home than, for instance, if they were walking down a street. In 1998 the Court held that temporary visitors in a home do not enjoy the same degree of privacy rights as do homeowners.[65] In New Jersey v. T.L.O. (1985) the Court ruled that public school students have some degree of Fourth Amendment protection, although it is less extensive than is provided to adults. The testing of students for drugs has been a recent controversy before the Court. A urine test for drugs is considered a search. In Vernonia v. Acton (1995) the Court held that random drug testing of athletes as a condition of participation was constitutional despite the lack of any probable cause that any specific athlete was using drugs. In Board of Education v. Earls (2002), the Court extended random drug testing to all extra-curricular activities under the schools’ “custodial responsibility” for students’ welfare and hinted that it would uphold the random testing of all students.
The restrictions of the Fourth Amendment are extremely important because the proceeds of any search that is judged to be unreasonable cannot be used against a defendant in court. This “exclusionary rule,” first articulated in Weeks v. United States (1921), serves as the main protection against abuses of the Amendment:
If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the 4th Amendment, declaring his right to be secure against such searches and seizures, is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution.
The exclusionary rule has been harshly criticized whenever improper searches cause valuable evidence not to be admitted in a trial. The feeling that guilty criminals escape conviction due to legal technicalities regarding the circumstances of a search is a commonly heard frustration. The courts have recently indicated that they are becoming more tolerant of minor errors. In United States v. Leon (1984) the Court refused to invalidate the conviction of a drug dealer because of a faulty warrant. The police obtained a warrant from a judge, conducted a search, and found ample evidence of drug trafficking. A judge, however, ruled that the evidence was inadmissible because there had not been sufficient probable cause to grant the warrant. The Supreme Court agreed that the warrant had not been based on sufficient probable cause but upheld the conviction because the officers had obtained their evidence based upon a warrant that they believed to be valid.
The Fourth Amendment only applies to searches by agents
of the government. In Burdeau v. McDowell (1921) a company
seized the papers of a fired employee and turned them over to the Justice
Department where they were used to convict him of mail fraud. Although McDowell could have sued the company
officials who took his papers, he could not prevent them from being used
against him in court. The Supreme Court
has also held that the full protection of the Fourth Amendment does not apply
to “administrative searches” conducted by safety inspectors, school officials,
or prison officers.
The requirement of a warrant and probable cause is not absolute. The Fourth Amendment prohibits only searches and seizures that are unreasonable. Over the course of many decisions, the Court has found several exceptions to the requirement of a warrant and even indicated instances where searches may be conducted without probable cause.
A search conducted in the process of making an arrest does not require a warrant.[66] The police may also seize any illegal material discovered in the course of an arrest, even if it does not relate to the cause of the arrest. For example, a man arrested for driving with an invalid driver’s license could be searched and, if in the course of the search, drugs were discovered, he could also be arrested for drug possession.[67] A warrant is also not required if the police can show that obtaining a warrant would likely make conducting the search impossible. In Carroll v. United States (1925) the Court ruled that the police did not need to obtain a warrant in order to search an automobile because the evidence might be gone before a warrant could be issued. Similarly, police in “hot pursuit” of a suspect do not need a warrant to search a building that they believe the suspect has entered, nor would police need a warrant to enter a building where they have probable cause to believe that a crime or emergency (such as a fire) is in process.
In all of the previous examples a warrant is not required if the police have probable cause that a crime has been committed. In Terry v. Ohio (1968) the Court faced a decision where even probable cause was in doubt. A veteran police officer observed three men walking back and forth in front of a store window in a manner that he considered to be “casing” a robbery. The officer followed the three men and, when they did not respond to his instructions to stop, grabbed one of the men, Terry. He then proceeded to “frisk” him by running his hands over the outside of his coat. In the process of this search, the officer felt a concealed revolver. After this discovery, the officer searched the other two men, finding an additional handgun. The men were arrested for violating a state law prohibiting the carrying of concealed firearms. Terry claimed that the officer had no right to grab or frisk him because no crime had been committed prior to the discovery of the revolver. Despite the absence of probable cause, the Court upheld the search on the ground that it was not unreasonable:
Where a reasonably prudent officer is warranted in the circumstances of a given case in believing that his safety or that of others is endangered, he may make a reasonable search for weapons of the person believed by him to be armed and dangerous regardless of whether he has probable cause to arrest that individual for crime or the absolute certainty that the individual is armed.
As a result of Terry, the police may briefly detain suspects and submit them to a quick, non-intrusive search to determine whether they are armed. In 1993 the Court extended the principle of Terry to allow the police to seize other illegal material (such as drugs) that are discovered as a result of a “pat-down” search.[68] In addition, the Court has upheld the use of sobriety roadblocks to catch drunk drivers. This issue raises Fourth Amendment questions because all cars are stopped without any probable cause that an individual driver is intoxicated. In 1990 the Court ruled that briefly stopping drivers without any individualized suspicion was reasonable in light of the government’s legitimate interest in curbing drunk driving.[69] In 2001, however, the Court ruled that police roadblocks to briefly detain cars and use trained dogs to search for drugs did constitute search requiring probable cause.[70] Probable cause is also not required to check airline passengers for weapons or for customs inspectors to search the belongings of travelers crossing international borders, nor do the police require probable cause if a person consents to a search.[71]
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 Fifth Amendment outlines many important legal protections, mainly affecting those persons accused of crimes. The first right protected by the Amendment is the right to a grand jury indictment when accused of capital or other serious crime.[72] An indictment is the formal accusation of committing crime. In order to protect defendants from being arrested and held for a long period of time without being charged with a crime (and therefore unable to defend themselves), the requirement of a grand jury indictment serves as a screening device to determine that the government has enough evidence to hold a person. Grand juries are appointed to hear evidence and determine if the government has the evidence necessary to proceed to trial. A grand jury hearing only involves the prosecution, who bears the sole burden of proving the justification of a formal charge. Defendants do not have the opportunity to present their own arguments. The result of a grand jury hearing is either an indictment or the defendant is set free. The requirement of a grand jury is one of the few remaining unincorporated provisions of the Bill of Rights. Some states use grand juries, but others hold pre-trial hearings before a judge that resemble mini-trials.
Another protection of the Fifth Amendment is the double-jeopardy clause, which states
that a person may not be retried for an offense in which they have been
previously acquitted. This prevents the
government from losing a case and simply re-arresting the defendant in hopes
that another jury will render a different verdict. There are some exceptions to this
principle. If a jury is unable to render
a verdict (this is commonly referred to as a “hung jury”) or a mistrial is
declared, the government may request another trial. If the verdict of a trial is appealed, the
second trial does not constitute double jeopardy. In addition, some criminal acts might result
in a variety of charges, for example murder and kidnapping. An acquittal on one charge does not prevent a
conviction on another. Similarly, a
person can be prosecuted for the same crime on both state and federal
charges. During the era of the civil
rights movement in the 1950s and 1960s, southern juries were reluctant to
convict white defendants of murdering blacks; however, the federal government
was able to win convictions of conspiracy to deny a person his/her civil rights
in federal court for the same offenses.
An interesting double jeopardy case reached the Court in 1975 when the
Court upheld a
The most famous provision of the Fifth Amendment is the protection against self-incrimination. A defendant cannot be forced to give evidence against himself. The refusal to answer a question because the answer might tend to incriminate oneself is often referred to as “taking the Fifth.” In a criminal trial, the prosecution cannot force a defendant to testify. Should the defendant choose to testify, however, the prosecution is then free to vigorously cross-examine. Legally, there can be no presumption of guilt from invoking this protection. A person may not, however, refuse to testify on the grounds that his or her testimony would incriminate someone else. In 2002 a sharply divided Court ruled 5-4 that prison rehabilitation programs that require inmates to reveal undisclosed crimes do not necessarily violate the constitutional right against compelled self-incrimination even if inmates lose privileges for refusing to participate.[74]
The protection against self-incrimination begins at the
time of arrest. In 1936 the Supreme
Court heard a case from
In Escobedo v. Illinois (1964) the Court overturned the confession of an accused murder because he had been denied the right to speak to an attorney despite his persistent requests. An attorney presumably would have advised Escobedo to remain silent and refuse to answer the police’s questions. Two years after Escobedo, the Court ruled in Miranda v. Arizona (1965) that the police must inform a defendant of his/her right to remain silent and the right to an attorney at the time of arrest. Police today refer to this reading of a defendant’s rights as “Mirandizing a suspect.”[76] The Court has held that the protection against self-incrimination applies only to verbal testimony. In 1966 the Court upheld the conviction of a man found guilty of drunk driving on the basis of a blood sample taken without his consent. The blood, the Court ruled, did not constitute testimony, but rather was physical evidence admissible despite the defendant’s objections.[77]
Another right protected by the Fifth Amendment is that of just compensation for private property that is taken by the government. The right of the government to take property is known as eminent domain. For example, without the right of eminent domain it would be virtually impossible for the government to build highways. The Fifth Amendment guarantees that property owners will be given “fair market value” for property seized through eminent domain. Many just compensation cases involve government regulations, such as zoning laws, which do not literally seize private property but limit its use.[78] In 1992 the Court ruled that beachfront property owners were entitled to compensation after the local government passed a zoning ordinance, which prohibited owners from building on their property. The Court ruled that this action virtually eliminated the value of the property and therefore the owners were entitled to compensation.[79]
The most important protection of the Fifth Amendment is that a person may not be “deprived of life, liberty, or property, without due process of law.” Due process means that the government must follow an established procedure and not act arbitrarily or in a discriminatory manner. Criminal proceedings follow an elaborate set of rules in an effort to ensure that every defendant is treated in a similar fashion and afforded all of his/her rights. Violation of due process is a major reason why convictions are overturned on appeal. Due process also applies to civil proceedings. A defendant must be notified of the charges and be given the opportunity to present his/her side of the case. In 1970 the Court ruled that a welfare recipient’s due process rights were violated when the government discontinued benefits without holding a hearing.[80] In In re Gault (1967) the Court ruled that juveniles have some due process rights in criminal cases, but not all of those guaranteed to adults. Public school students also have limited due process rights. In Goss v. Lopez (1975) the Court ruled that students were entitled to be notified of the charges against them and afforded an opportunity to tell their side of the story before being suspended.[81]
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
(discovered) 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 defense.
Similar to many aspects of the Fifth Amendment, the Sixth outlines additional rights protecting those accused of committing crimes. The right to a speedy trial is based upon the presumption that defendants are innocent until proven guilty. The power of the government to detain a suspect without trial is seen as a potential subject of abuse. Overcrowded courts and an increasingly complicated legal system make this clause applicable only in a general sense. Technically, federal trials must commence within a hundred days following an arrest. From a practical standpoint, the government is ready to proceed before the defense in most cases. States are not subject to the 100 day limitation; however, they must proceed with prosecutions in a reasonable and timely fashion. Many cases begin long after the 100-day limit due to defense requests for continuances. The same principle applies to the stipulation that trials must take place in the district in which the crime has been committed. This is to protect the defendant from the cost and inconvenience of a distant trial.[82] Should a crime be particularly gruesome or offensive to a local community, it may be in the defendant’s best interest to be tried outside of the community. For this reason, defendants are sometimes granted a change of venue.[83]
The right to a public trial is designed to protect the defendant and ensure the fairness of the proceeding. If a defendant and the Court agree, a trial may be closed to the public; however, the Court has ruled that the news media has a right to cover all criminal trials.[84] Some states permit trials to be televised, but this is the result of state law and not required under the Sixth Amendment.
Perhaps the most important right contained in the Sixth Amendment is the right to an impartial jury. Before the presentation of evidence in a trial begins, attorneys are entitled to question potential jurors and have them dismissed if they can show potential bias.[85] The general requirement is that a jury must be selected from a pool of candidates that represents a “fair cross-section” of the community. In 1975 the Court ruled that states could not make jury duty obligatory for men but optional for women.[86] Although attorneys are permitted to exclude potential jurors without cause through peremptory challenges, these challenges may not be used to exclude jurors solely on the basis of race or sex.[87]
Once a jury is impaneled, it is the obligation of the
government to ensure that it is not influenced by outside pressures. The 1954 case of Dr. Sam Sheppard illustrated
the need for such protections.[88] Dr Sheppard was a well-known
Because of the publicity surrounding the trial, Sheppard
asked for a change of venue but this was denied. Every juror, except one, testified at voir dire to reading about the case in
the
Sheppard was convicted of first-degree murder. In 1956 he appealed his conviction to the Supreme Court on the grounds that his trial was so infused and enveloped by the “atmosphere of a Roman holiday” that the atmosphere deprived him of a fair trial. The Court initially refused to hear the case; however, in Sheppard v. Maxwell (1966) the Court granted Sheppard’s request for another hearing and ruled in his favor:
The massive, pervasive, and prejudicial publicity attending petitioner’s prosecution prevented him from receiving a fair trial.
The trial court failed to invoke procedures which would have guaranteed petitioner a fair trial, such as adopting stricter rules for use of the courtroom by newsmen as petitioner’s counsel requested, limiting their number, and more closely supervising their courtroom conduct. The court should also have insulated the witnesses; controlled the release of leads, information, and gossip to the press by police officers, witnesses, and counsel; proscribed extra-judicial statements by any lawyer, witness, party, or court official divulging prejudicial matters; and requested the appropriate city and county officials to regulate release of information by their employees.
The Sheppard decision places the burden on the government to ensure that a defendant receives a fair trail before an impartial jury.[89] For this reason, juries are sometimes sequestered for the entire duration of a famous trial to guarantee that they are not influenced by media coverage of the proceedings. More commonly, juries are not sequestered, but instructed to avoid any coverage of the trial while it is in process and prevented from discussing the case outside of the courtroom. The identity of jurors is not released during a case.
The government has the power of subpoena to force unwilling witnesses to testify in court. The “compulsory process” clause of the Sixth Amendment also extends this power to defendants. The right to confront witnesses means that a defendant has the right to face witnesses in court, hear their testimony, and cross-examine them. In 1990 the Court established an exception to this right when it ruled that children could testify via videotape in child abuse cases.[90] The right to face one’s accusers generally excludes hearsay testimony, preventing a witness from testifying to what they had heard another person say on the grounds that the original speaker could not be cross-examined in court.
In Gideon v. Wainwright (1963), the Sixth Amendment has been interpreted to require the appointment of counsel in all serious criminal cases. Gideon applied only to felonies, but in 1972 the Court extended the requirement to appoint counsel to all cases in which a prison sentence could be imposed.[91] Defendants also have the right to reject an attorney and defend themselves; however, they waive their right to appeal on the grounds of inadequate counsel should they be convicted.[92]
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 Seventh Amendment guarantees the right to a jury trial in virtually every federal civil case. This right has not been incorporated into the Fourteenth Amendment and therefore does not apply to state civil trials. In some civil trials both parties agree to dispense with a jury trial due to the complexity of the issues involved in the case. Complex anti-trust litigation is often heard by a judge for this reason.
The second right guaranteed in the Amendment is that a judge may not force the jury to arrive at a given conclusion. The judge may instruct the jury on the law, but it is generally up to the jury to decide the facts and render a verdict. A judge may set aside a jury’s verdict if the judge believes that there was not sufficient evidence to support the verdict; however, judges are extremely reluctant to do this.
Excessive bail shall
not be required, nor excessive fines imposed, nor cruel and unusual punishments
inflicted.
The Eighth Amendment contains three important rights. The first of these prohibits the setting of bail at unreasonable levels. Bail is money or property put up by an accused person so that they do not have to remain in jail prior to trial. The purpose of bail is to act as security, ensuring that the accused will appear for trial. When the accused does appear, the bail money is returned. A person only forfeits bail if they fail to appear. A number of factors affect the amount of bail set by the court. A wealthy person may be required to post higher bail than a poor person, and bail is also affected by the court’s assessment of the likelihood that a defendant may flee the trial. Bail may be denied if the court believes that it would be ineffective in guaranteeing that defendants appear for trial. In 1987 the Court ruled that bail could also be denied if releasing the defendant would provide a security risk to the community.[93]
The prohibition against excessive fines only applies to
criminal penalties, not civil judgments.
The Court has been reluctant to declare fines as excessive; however,
penalties must not be grossly out of proportion to the offense. In 1998 the Court overturned the seizure of
$357,144 in
The final protection of the Eighth Amendment is a
prohibition against “cruel and unusual punishments.” Although physical punishments such as
whipping or branding were commonly imposed at the time of the ratification of
the Bill of Rights, the Court has ruled that the cruel and unusual clause must
be evaluated in the light of changing standards of society and therefore, “a
penalty that was permissible at one time in our nation’s history is not
necessarily permissible today.”[95] Under this doctrine, the Court has outlawed
all forms of corporal (physical) criminal punishments. The Court did refuse, however, to outlaw the
use of corporal punishment in schools in Ingraham
v. Wright (1977). James Ingraham was
an eighth grade student at
Most Eighth Amendment cases involve the death penalty or increased penalties for frequent offenders. In 1972 the Court ruled that the death penalty was unconstitutional because it was imposed in an arbitrary and inconsistent manner. Poor, male, and minority defendants were far more likely to be sentenced to death than others who had been convicted of similar crimes.[96] As a result of this decision, many states rewrote their death penalty laws to address the concerns of the Court and impose more uniformity in the process. The Court upheld these new laws in Gregg v. Georgia (1976), ruling that the imposition of the death penalty in itself does not violate the Eighth Amendment. The Court has outlawed the imposition of the death penalties for crimes other than first-degree murder. In 2002, the Court narrowly ruled that the execution of moderately mentally retarded inmates was unconstitutional.[97]
The Court has also upheld the imposition of the death
penalty on defendants who were accomplices to a murder but not directly
responsible for the killing. Three
brothers assisted their father, Gary Tison, and another inmate in escaping from
an
Public cries for stiffer drug penalties have led to court challenges to long mandatory sentences for minor drug possession on the ground that they constitute “cruel and unusual punishment.” In Harmelin v. Michigan (1991) the Court upheld a life sentence without parole given to a man upon his first conviction for cocaine possession. Frequent-offender laws that impose stiff penalties for relatively minor crimes have also generally been upheld, despite challenges on Eighth Amendment grounds. In Rummel v. Estelle (1980) the Court upheld the imposition of a life prison sentence on a man convicted of three felonies despite the fact that the total amount of money involved in the three separate fraud convictions was only $230. The Court did insist on a degree of proportionality in 1983 when they refused to uphold the imposition of a life sentence to a man who was convicted of passing a $100 check without sufficient funds in his account after he had been previously convicted of several other more serious, non-violent offenses.[98]
The enumeration
(listing) in the Constitution, of certain rights, shall not be construed to
deny or disparage (depreciate) others retained by the people.
The Ninth Amendment has almost never been used as a basis for a Supreme Court decision. This is probably due to the vagueness of its nature. The purpose of the Amendment was probably to relieve concerns that a listing of rights in the Bill of Rights would limit or infringe upon rights already guaranteed by state constitutions. At times the Court has referred to rights not specifically mentioned in the Bill of Rights such as the right to travel and the right to vote. In case law, however, other portions of the Constitution have been used to protect these rights without reference to the Ninth Amendment (usually the due process or equal protection clauses of the Fourteenth Amendment).
The most important right not mentioned in the Bill of
Rights is probably the right to privacy.
In Griswold v. Connecticut
(1965) three justices cited the Ninth Amendment in concurring with the Court’s
opinion that
The powers not
delegated to the
Although the Tenth Amendment is seldom cited in Court
opinions, it addresses a fundamental concept of the Constitution—that of
Federalism. Defining the balance of
power between the federal and state governments was not only a dominant issue
at the Constitutional Convention of 1787, but also the root cause of the Civil
War nearly half a century later. The
Supreme Court, under the stewardship of Chief Justice John Marshall, clearly
established the supremacy of federal law over state law in McCulloch v. Maryland (1819).
The
Recently, however, the Court has resurrected the Tenth Amendment, using it to strike down federal legislation that the justices believe has strayed too far from the requirement that the expansion of federal power under the “necessary and proper” clause relate to powers that are expressly granted to the federal government within the Constitution. In U.S. v. Lopez (1995) the Court struck down a federal law declaring schools “gun-free zones” and mandating stiffer penalties for persons convicted of illegally carrying guns on school property. In setting aside the federal conviction of a twelfth grade student who was convicted of carrying a concealed .38 caliber handgun and five bullets, the Court ruled that the governments use of its power to regulate interstate commerce was insufficiently tied to the gun legislation:
…although this Court has upheld a wide variety of congressional Acts regulating intrastate economic activity that substantially affected interstate commerce, the possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, have such a substantial effect on interstate commerce…. [The legislation] by its terms has nothing to do with “commerce” or any sort of economic enterprise, however broadly those terms are defined…. It cannot, therefore, be sustained under the Court’s cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce…. To uphold the Government’s contention … that firearms possession in a local school zone does indeed substantially affect interstate commerce would require this Court to pile inference upon inference in a manner that would bid fair to convert congressional Commerce Clause authority to a general police power of the sort held only by the States.
Two years after Lopez,
the Court employed the same reasoning in striking down portions of the Brady
Law requiring state and local officials to administer background checks on
handgun purchasers. The Court ruled that
the national government had no power to require state officials to administer a
federal program.[101] Even more recently, in 1999 the Court invoked
the Tenth Amendment to rule in three separate cases that individuals could not
sue states for violations of federal law.[102] In the 1999-2000 term, the Court invalidated
a federal law allowing victims of gender motivated violence to seek civil
damages in federal courts and also struck down federal penalties for the arson
of a private residence.[103] At the same time, however, they refused to
allow states to enact tougher safety and environmental laws for ships sailing
along their coasts, and in the next term they invalidated
Passed in the wake of the Civil War, the Fourteenth Amendment was an
attempt to protect the rights of the newly freed slaves and punish Confederate
rebels. Sections 2-5 applied to
post-Civil War issues and have little current legal relevance. Section 1 clarified the status of Americans
of African descent as
No State shall make or enforce any law which shall abridge the
privileges or immunities (rights) of citizens of the
Today, the Fourteenth Amendment fulfills three primary functions. As we have already discussed, it has been used to incorporate most of the provisions of the Bill of Rights and make them incumbent upon the states. In addition, it underscores the right of due process of law. Perhaps most importantly, it introduces the concept of equal protection into constitutional law. Ironically, the explicit inclusion of due process in the Fourteenth Amendment has been used to argue against the case for full incorporation. In 1884 the Court argued that no part of the Constitution was meaningless, and therefore the repetition of the Fifth Amendment guarantee of due process in the Fourteenth Amendment indicated that the intent of the Amendment could not have been to simply include all of the protections of the Bill of Rights, otherwise there would be no need to repeat the existing due process clause.[106] Interestingly, as incorporation has become virtually complete in the twentieth century, the Court has never made a strenuous argument that the Fourteenth Amendment guarantee of equal protection applies only to state governments. Instead, the Court has chosen as early as in 1921 to consider equal protection as being protected against federal intrusion by the due process clause of the Fifth Amendment. Chief Justice William Howard Taft wrote in reference to due process and equal protection:
…a violation of one may involve at times the violation of the other, but the spheres of protection they offer are not coterminous (meeting at exactly the same point)..... [Due process] tends to secure equality of the law in the sense that it makes a minimum of protection for everyone’s right of life, liberty, and property, which the Congress or the legislature may not withhold. Our whole system of law is predicated on the general, fundamental principle of equality of application of the law.[107]
When the
Court ruled that state laws requiring segregated public schools violated the
equal protection clause of the Fourteenth Amendment in 1954 they ruled in a
companion case that segregation in the
The Courts have held that guarantee of due process encompasses two forms. Procedural due process refers to the process by which individuals are treated. Gideon v. Wainwright is an excellent example of a procedural due process issue because Gideon claimed that the failure to provide him with an attorney deprived him of a constitutional right. Procedural due process, as Justice William O. Douglas wrote, “spells the difference between rule by law and rule by whim or caprice (without reason).” Due process does not, however, only mean that procedural standards are met. A second form of due process seeks to examine the reasonableness of the law itself. Rather than merely looking at the application of the law, substantive due process takes an additional step in examining the actual substance of the law and whether the legislation in itself, regardless of its application, violates fundamental rights. In the words of Justice John Marshall Harlan II: “Were due process merely a procedural safeguard, it would fail to reach those situations where the deprivation of life, liberty, or property was accomplished by legislation which by operating in the future could, given even the fairest possible procedure in application to individuals, nevertheless destroy the enjoyment of all three....”[109]
Substantive due process is a controversial issue. By examining the substance of the law and evaluating its fairness, the courts substitute their judgment for that of elected legislatures. Therefore, substantive due process embodies the most anti-democratic aspects of the Bill of Rights. As a result, the courts are hesitant to apply the doctrine except in the most extreme cases. Generally, it is assumed that legislative acts are valid and that any challenge to laws on a substantive basis must carry a heavy burden of proof.
More
recently, the Supreme Court has used substantive due process to protect
individual liberties, but its first application was to invalidate efforts to
address economic concerns in the late nineteenth century. When states and the federal government moved
to enact laws to control businesses and protect the rights of laborers, the
Court often struck them down on the rationale that they violated the property
rights of business owners or the “freedom of contract” enjoyed by
laborers. An excellent example of these
economic rulings is Lochner v.
Lochner did not last for long. In 1908 the Court upheld an
At the same
time that the Supreme Court was abandoning the use of substantive due process
to frustrate economic reform, it became more willing to use the very same
doctrine to protect individual rights in other areas. In United
States v. Carolene Products (1938) the Court upheld a federal law
regulating the fat content of milk products, asserting that the government only
needs to show a “rational basis” for legislation. The rational
basis test is significant because it is a relatively easy standard for
legislation to meet. Rationality only
implies that there be a reason for the law, not that there be a greater reason
for supporting the law than opposing it.
The Carolene Products decision
thus embodies the concept discussed earlier—it is assumed that the courts will
uphold the acts of a legislative body.
For a court to invalidate a legislative act, there must be a huge
majority of evidence demonstrating that the act violates the Constitution. At the same time that Carolene symbolized the end of judicial intervention in economic
issues, it hinted at greater involvement in other areas. A footnote in the decision indicated that: “prejudice
against discrete and insular minorities may be a special condition which... may
call for a correspondingly more searching judicial inquiry.” This famous “Footnote Four” implied that
while a rational basis test would suffice to defend the constitutionality of
most laws, the Court would employ a stricter standard in cases of
discrimination and equal protection.
Actually, the Court had previously employed substantive due process in
the protection of individual liberties prior to the Carolene decision. In Meyer v. Nebraska (1923) the Court ruled
that a World War I era prohibition on the teaching of a foreign language (with
German being the primary concern) prior to the ninth grade constituted a denial
of personal liberty and thus violated the due process clause of the Fourteenth
Amendment. Two years later in, Pierce v. Society of Sisters (1925), the
Court also invalidated an
Roe v. Wade and the continuing battle
over abortion provides an excellent means of observing the intricacies of
constitutional law. In his dissent in Roe, Chief Justice William Rehnquist
revised the arguments used earlier in the century against decisions such as Lochner, namely that the Court was
acting as a “super-legislature,” substituting its views for the actions of
elected legislators. Roe v. Wade also illustrates the
difficulty in challenging Supreme Court decisions. The nation (and the Court, which had divided
7-2 in Roe) was bitterly divided over
the issue of abortion. Catholic
organizations, as well as religious and social conservatives, bitterly
criticized the Court’s decision and worked to have it overturned. The first remedy sought was a constitutional
amendment banning abortion. This effort
failed due to the very controversial division within the public over the
issue. While political polls showed at
various times strong opposition to abortion, this opposition never reached a
majority. The ratification of a
constitutional amendment requires the approval of two-thirds of Congress and
three-quarters of the states. With the
population so strongly divided over abortion, a constitutional amendment was an
impossibility. The second strategy
employed by abortion opponents focused on presidential elections. By electing presidents who pledged to appoint
anti-abortion justices to the Supreme Court, a future Court might overrule Roe.
This strategy almost succeeded.
The elections of Ronald Reagan in 1980 and George Bush in 1988 were
major victories for the opponents of Roe. Together, the two Republican presidents
appointed five justices to the Court, two of whom have constantly voted in
opposition to all abortion rights.[113] At the same time that abortion opponents were
seeking the appointment of friendly justices to the Supreme Court, they worked
through Congress and the state legislatures to make abortions less
accessible. State and federal laws
erected a myriad of restrictions on the right to abortion, all of which were
challenged in the courts. In Harris v. McRae (1980) the Court upheld
the Hyde Amendment that barred the use of federal money for abortions unless
the life of the mother was in danger or the pregnancy had resulted from rape or
incest.[114] This decision made it much harder for poor
women to afford abortions. Later, the
Court upheld a law prohibiting federally funded health care institutions from
even discussing abortion as an alternative with pregnant women.[115] Additional restrictions were imposed by
various states. In Planned Parenthood v. Ashcroft (1983) the Court upheld a
In the wake of our discussion of substantive due process, it is important to remember that there are limits to the extent that the Court can interpose its judgment upon social controversies. While the twentieth century has seen the vast expansion of judicial oversight, this trend is not all encompassing. The case of DeShaney v. Winnebago County (1989) is but one example that justices are keenly aware of the principle that the Court must operate within the restraints of the Constitution and in accordance with the principle of stare decisis.
As dramatic as the twentieth century revolution in protecting due process has been, it pales in comparison to the application of the other significant clause of the Fourteenth Amendment, the guarantee of equal protection. Originally only loosely applied to race, the equal protection clause has been extended during the latter half of the twentieth century to encompass various other forms of discrimination.
In 1880 the Supreme Court stated that the intent of the
equal protection clause of the Fourteenth Amendment was to “assure to the
colored race the enjoyment of all the civil rights that under law are enjoyed
by white persons, and to give to that race the protection of the general
government in that enjoyment, whenever it should be denied by the States.”[119] The language of the Amendment does not
mention race; however, in the 1873 Slaughterhouse
Cases, the Court had narrowly maintained that the purpose of the equal
protection clause was only to protect blacks from unjust discrimination. Immediately following the Civil War there was
very little legally enforced segregation in the
In Plessy v.
Ferguson (1896) the Court heard a challenge to a
For half a decade following Plessy, blacks had little success challenging the separate but equal doctrine; however, there were successful court challenges when the facilities afforded to blacks were clearly inferior. In 1914 the Supreme Court upheld a challenge to a railway company that provided sleeping cars for white customers but none for blacks, and in 1941 an interstate carrier was successfully sued by a black congressman who held a first class ticket but was forced to move to a black-only car when his train crossed the border from Illinois to Arkansas. The Court ruled that his rights were violated because the railway did not provide a first class car for blacks.[121]
In addition to segregated public accommodations, the law
in many states also mandated segregated schools.[122] In 1908,
With its successes in higher education cases, the NAACP
and its lead attorney Thurgood Marshall turned its attention to segregation
affecting public school children. Five
separate cases from
Although the Brown
decision only applied to schools, it established a precedent that was used to
outlaw discrimination in virtually every public facility within the next ten
years. Problems with allegedly “private”
discrimination, however, remained throughout the South as restaurants, hotels,
and other privately owned facilities still refused to desegregate. In 1964 Congress passed the most extensive
civil rights legislation since the period following the Civil War. The Civil
Rights Act of 1964 prohibited racial discrimination in employment and
public places as well as authorized the federal government to sue states to
enforce previous desegregation orders.[126] The Act asserted its right to outlaw
segregation in public accommodations through the power of the federal
government to regulate interstate commerce.
This power was quickly challenged in Heart
of Atlanta Motel v. United States (1964).
The Heart of Atlanta Motel was a small establishment in downtown
The extension of the government’s right to prohibit all
forms of racial discrimination, however, is not absolute. In Moose
Lodge 107 v. Irvis (1972) the Court ruled that the refusal of a private
club to serve a black man, who was the guest of a white member, did not
constitute a violation of the equal protection clause. The Court rejected the plaintiff’s claim that
the fact that
All racial distinctions have not been found to be
unconstitutional. For example, in cases
such as University of California v. Bakke
(1978) the Court has upheld some affirmative
action programs where race is permitted to be a factor in the consideration
of college enrollment, employment, hiring, and the awarding of governmental
contracts. Unlike traditional forms of
racial distinctions, affirmative action seeks to advance the opportunity of
racial (and sometimes other) minorities by allowing minority status to be a
positive consideration.[128] Increasingly, however, both lower federal and
state courts have been reluctant to permit any consideration of race, and
several states have passed constitutional amendments barring race from being a
factor in college admissions, governmental contracts, or hiring practices. Essentially, the prediction offered in the
famous “Footnote Four” of the Carolene
Products case has come to pass. Any
form of racial classification is usually evaluated on the basis of strict scrutiny. Strict scrutiny is the opposite of the
rational basis evaluation. Whereas in
most cases the burden to overturn a law is placed upon the challenger and the
government needs only to prove a rational reason for the legislation, under
strict scrutiny the burden falls on the government to show that the legislation
is absolutely necessary to achieve a “compelling” state interest.[129] Attorneys often refer to strict scrutiny as “strict
in theory but fatal in fact.”[130] When a court applies the strict scrutiny
test, the legislation in question is usually doomed. In fact, the Supreme Court has only upheld an
action under strict scrutiny once in its history—the internment of
Japanese-Americans during World War II.[131] Governmental actions on the basis of race do
not even need to discriminate against one racial group. In Loving
v. Virginia (1967) the Court invalidated a
Despite the Court’s early ruling in the Slaughterhouse Cases, equal protection
claims are not limited solely to discrimination against blacks. As early as 1886 the Court upheld the claim
of a Chinese alien (non-citizen) on equal protection grounds. The city of
The extension of equal protection to gender cases has
occurred mainly in the last thirty years.
As recently as 1948 the Court upheld a state law prohibiting women from
working in saloons unless they were the wife or daughter of the bar owner.[133] In 1971, however, the Court struck down an
The concept of equal protection has an application to
issues other than discrimination based on race, citizenship, and gender. Voters in
In 1962 the Court acted to prohibit discrimination against urban residents in the drawing of legislative boundaries. Many states had failed to reapportion legislative seats despite long-term migration from rural to urban areas. As a result, many rural districts contained as few as half the residents of urban districts, thus “over-representing” rural voters. The Court’s “one man, one vote” decision in Baker v. Carr requires that legislative districts contain approximately the same number of voters. The Court has been more reluctant to apply equal protection to economic classes. In San Antonio School District v. Rodriguez (1973) it refused to rule that state school funding formulas based primarily upon property taxes discriminate against students in poor districts with smaller tax bases despite the fact that these conditions may result in huge per pupil spending differences within a state.[141] In 1990 the Court used the equal protection clause to assert the right of terminally ill patients to die. The Court refused, however, to permit the parents of Mary Beth Cruzan, to disconnect their daughter’s life support system, despite her “persistent vegetative state,” because she had not made her wishes clear before she was injured in an automobile accident.[142] This decision caused many people to make living wills, authorizing that they not be kept alive via life support systems in the event of a catastrophic illness or accident.
Jeffrey T. Stroebel, The
[1] Marbury v. Madison began on
[2] Early in the country’s history many attorneys did not attend law school but served as apprentices to established attorneys. It was not until 1957 that the Court was composed of justices who all had law degrees.
[3] Cherokee
Nation v.
[4] McClanahan
v.
[5] Most cases of assault, murder, and robbery are state crimes.
[6] In the 1999-2000 term, the Court heard only 73 cases, the lowest since the 1950s. Prior to 1925 the Court heard all cases submitted to it.
[7] The best known example of the Court overruling a previous decision is in the area of racial segregation. In 1896 the Court ruled in Plessy v. Ferguson that discrimination based upon race was constitutional. In 1954 the Court ruled that required racial segregation of public schools was in violation of the Constitution (Brown v. Board of Education).
[8] The
Nature of the Judicial Process.
[9] The term Case Law refers to legal decisions that carry the force of law. Other forms of law would include Statutory Law—laws passed by legislative bodies such as Congress or state legislatures; Constitutional Law—based upon the Constitution (including amendments); Administrative Law—government agencies interpretations (executions) of statutes (for example, federal regulations issued by the Executive Branch); and Common Law—unwritten law based on tradition, natural law, and reason.
[10] James II was essentially removed by the overwhelmingly Protestant Parliament because of his Catholicism and determination to pass the throne to a Catholic son. His removal and the accession of William and Mary are known as the Glorious Revolution.
[11] The term “Bill of Rights” has come to mean the first ten amendments to our constitution.
[12] Board of Education v. Barnette (1943).
[13] Irving Brant. The Bill of Rights (Indianapolis: Bobbs Merrill Co., 1965), p. 333.
[14] Hurtado v.
[15] Gitlow v.
[16] Twining v.
[17]
[18] Adamson v.
[19] Schneider v. Town of
[20] Garner v.
[21] Senn v. Tile Layers
[22] Barnette was an unusually rapid reversal of Minersville School Board v. Gobitis (1940).
[23] In 2001 the Court held that individual mushroom growers could not be forced to pay for a federally-run advertising campaign designed to encourage the consumption of mushrooms—United States v. United Foods—on the grounds that this was compelled speech..
[24] We will also consider the rights of public school students in Board of Education v. Pico (1982) and Hazelwood School District v. Kuhlmeier (1988).
[25] Jehovah’s Witnesses were often subjects of important First Amendment cases. Between 1938-1955, the Witnesses took forty-four cases to the Court, prevailing in thirty-six of them.
[26] R.A.V. v.
[27]
[28] Terminiello v.
[29] Dennis v.
[30] Prurient is defined as “characterized by an inordinate interest in sex.”
[31] Jacobellis v.
[32] Pope v.
[33] The cable television case was Turner v. FCC. In Apollo Media v. Reno (1999), the Court upheld a federal law making it a crime to send an e-mail message that is “obscene, lewd, lascivious, filthy, or indecent with intent to annoy, abuse, threaten, or harass another person.”
[34]
[35] Central Hudson Gas & Electric Co. v. Public Service Commission (1980).
[36]
[37] Curtis Publishing Co. v. Butts (1967)
and Associated Press v.
[38] Monitor Patriot Co. v.
[39] Gertz v. Robert Welch, Inc.
[40] In most
of the
[41] Everson v. Board of Education (1947).
[42]
[43] Walz v. Tax Commission (1980). Tax exemptions for religious organizations have been successfully challenged when they have engaged in partisan political activities.
[44] The New York State Board of Regents recommended the prayer in question to local school districts. It consisted of: “Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country.”
[45] Lee v. Weisman (1992).
[46] Westside Community Schools v. Mergens (1990).
[47] Marsh v. Chambers (1983).
[48] Epperson v.
[49] Edwards v. Aguillard (1987).
[50] NAACP v.
[51] Elrod v. Burns (1975).
[52] Civil Service Commission v. Letter Carriers (1973).
[53] Hurley v. Irish-American Gay, Lesbian, and
Bisexual Group of
[54] The
[55] Today, state militias are known as the National Guard.
[56] Peter Irons. A People’s History of the Supreme Court (New York: Viking, 1999), p. 75.
[57] In Lewis v. U.S. (1980), the Court commented that a federal control
law did not “trench upon any constitutionally protected liberties.”
[58] In May 2002 the Bush
administration announced that the Justice Department was filing a brief that
asserted that the Second Amendment did confer an individual right to bear arms
that is in no way dependant on the relationship to a militia. Solicitor General Theodore Olson commented
that such a right was “subject to “limited, narrowly tailored specific exceptions
or restrictions.” This announcement was in support of a similar finding by the
5th Circuit Court of Appeals in
[59] An
excellent account of the
[60] The quartering of troops in private homes was rare. Troops were usually housed in barracks built by the colonies or in taverns and inns.
[61] Griswold v.
[62]
[63] Ybarra v.
[64] Katz v.
[65]
[66] Agnello v.
[67]
[68]
[69] Michigan Department of State Police v.Sitz.
[70]
[71] In the case of minors, a parent could give consent to their child being searched, thus waiving Fourth Amendment stipulations.
[72] A capital crime is one in which the death penalty may be imposed.
[73]
[74] McKune v. Lile.
[75] Ashcraft v.
[76] The Court upheld Miranda by a
[77] Scmerber v.
[78] Zoning laws regulate land use. For example, an area might be zoned exclusively for residential housing to prevent the construction of a sewage treatment plant adjacent to someone’s home. Homeowners might be prevented from erecting fences or sheds that would detract from the visual appeal of an area. Zoning is also used to prevent congestion by limiting the amount of business in an area or by maintaining a minimum lot size in residential areas.
[79] Lucas v.
[80] Goldberg v. Kelly.
[81] In the case of a temporary suspension, students are not entitled to a neutral hearing, call witnesses, or be represented by an attorney. In cases of expulsion, students are generally entitled to call witnesses and be represented by an attorney; however, a school official ultimately sits in judgment.
[82] This protection emanates from the period before the Revolutionary War when Britain transported colonists accused of smuggling or other anti-British activities to Canada or England in order to avoid local juries that would be sympathetic to the accused.
[83] An
excellent example of this would be the trial of the suspects in the 1995
[84]
[85] The process of questioning prospective jurors is known as voir dire. Attorneys are also permitted to dismiss a limited number of potential jurors without establishing any cause through peremptory challenges.
[86]
[87] The
racial exclusion case is Batson v.
Kentucky (1986). J.E.B. v.
[88] The Sheppard case provided the inspiration for the film and television series “The Fugitive.”
[89] Dr. Sheppard died in 1970. In 1997 Indianapolis DNA expert, Dr. Mohammed Tah, corroborated Sheppard’s story by proving that a third person’s blood (in addition to Dr. Sheppard and his wife) had been spilled in her bedroom the night of the murder.
[90]
[91] Argersinger v. Hamlin.
[92] Faretta v.
[93]
[94]
[95] Trop v. Dulles (1958).
[96] Furman v.
[97] Atkins
v.
[98] Solem v. Helm.
[99] This decision was extended to non-married persons in Eisenstadt v. Baird (1972).
[100]
[101] Printz v.
[102] Alden v. Maine, Florida Prepaid Postsecondary Education v. College Savings Bank, and College Savings Bank v. Florida Prepaid Postsecondary Education.
[103]
[104]
[105]In general, the Court has recently been far more willing to rule federal laws unconstitutional. In the first 200 years after the Constitution was ratified, the Supreme Court struck down only 127 federal laws. Between 1995-2001, the Rehnquist court struck down 28 federal laws.
[106] Hurtado v.
[107] Truax v. Corrigan (1921).
[108] Bolling v. Sharpe.
[109] Dissenting opinion in Poe v. Ullman (1961).
[110] Muller v.
[111] West Coast Hotel v. Parrish.
[112] This ruling struck down anti-abortion laws in 31 states.
[113] The two strongly anti-abortion justices are Antonin Scalia and Clarence Thomas. Justices Sandra Day O’Connor and Anthony Kennedy, both Reagan appointees, have supported some restrictions on abortions, but provided the decisive votes in Planned Parenthood v. Casey preventing an overruling of Roe v. Wade. Bush appointee David Souter has proven to be an extreme disappointment to conservative Republicans, not only strongly supporting abortion rights but also consistently voting with the more liberal wing of the Court.
[114]
Prior to the Hyde Amendment, federal medical coverage (Medicaid) paid for
abortions by poor women. The Amendment
is named after Representative Henry Hyde of
[115] Rust v. Sullivan (1991).
[116] Webster v. Reproductive Health Services.
[117] According to the Centers for Disease Control and Prevention, there were 1,221,585 reported abortions in 1996, 15 percent below the 1,429,577 peak reported in 1990. The abortion ratio is 314 for every 1,000 live births. Twenty abortions are performed annually per 1,000 women ages 15 to 44. Fifty-five percent of all abortions were performed during the first eight weeks of pregnancy, and about 88 percent were in the first 12 weeks, the same as in the past. As in previous years, 61 percent of women who had abortions were white, 80 percent were unmarried and about 20 percent were under 20.
[118] The Court abandoned the trimester formula of Roe, maintaining in Casey that the only important distinction occurred at the point of fetal viability.
[119] Strauder v.
[120]
The states were:
[121] McCabe v.
[122]
Seventeen states and the
[123]
[124] Sweatt v. Painter and Mc Laurin v.
[125]
The fifth, Bolling v. Sharpe, was
considered separately because it emanated from the
[126] Title VII of the Act also prohibited employment discrimination based upon sex.
[127] Katzenbach v. McClung (1964).
[128]
Affirmative action programs have been under strong legal and political attack
and several states have passed constitutional amendments banning any
consideration of race in college admissions, hiring, and the awarding of
government contracts. In 1986 the Court
ruled that governments could only establish programs that guaranteed specific
benefits to a certain racial group in cases where there was a specific past
history of racial discrimination (Wygant
v. Jackson Board of Education).
[129] Strict scrutiny is applied when the Court is asked to review laws that treat individuals differently based upon their race, alienage, or national origin, or when fundamental rights are infringed.
[130] Edward Lazarus. Closed Chambers (New York: Times Books, 1998), pp. 293-294.
[131] Korematsu v.
[132] Yick Wo v.
[133] Goesaert v. Cleary.
[134] Reed v. Reed.
[135] Statutory rape laws make sexual intercourse with minors illegal regardless of consent.
[136] Michael M. v.
[137] Rostker v. Goldberg (1981).
[138] Nguyen v. Immigration and Naturalization Service (2001).
[139] Bowers v. Hardwick (1986).
[140] In his opinion in Boy Scouts of America v. Dale, Chief Justice Rehnquist quoted from various Boy Scouts publications and explanations of the policy, noting that although the terms “morally straight” and “clean” in the Scout Oath and Law “are by no means self-defining.” Boy Scout officials interpreted them as statements of opposition to homosexuality, and the Court accepted this without further inquiry.
[141]
In the
[142] Cruzan v. Missouri Department of Health.