In Marbury v. Madison (1803), the Supreme Court established the principle of judicial review by ruling that a section of the Judiciary Act of 1789 was unconstitutional. This allowed the Court to determine the constitutionality of laws and assert its role as an equal branch of government. In McCulloch v. Maryland (1819), the Court upheld the constitutionality of the national bank and established Congress's implied powers under the Necessary and Proper Clause, expanding federal power. In Plessy v. Ferguson (1896), the Court endorsed the doctrine of "separate but equal" and allowed states to require racial segregation as long as facilities were equal, legalizing racial discrimination for over 50 years.

1. Mr.FredrickSmith
AcademicJudicialBranchReading
Significant court cases from American history have changed and
enlightened our understanding of federal power, civil rights, civil
liberties, rights of the accused and privacy. Each case summary
includes secondary analysis of the case, and quotes or excerpts from
the ruling opinion.
When reading keep in mind why certain material was included, words
that are key or difficult, what you think of the ruling, and evidence that
is important to the case and that supports your beliefs.
Titusville Area School District

2. Marbury v. Madison (1803)
Just as George Washington helped shape the actual form that the executive branch would
take, so the third chief justice, John Marshall, shaped the role that the courts would play.
Under the administrations of Washington and his successor, John Adams, only members
of the ruling Federalist Party were appointed to the bench, and under the terms of the
Constitution, they held office for life during "good behavior." Thus, when the opposing
Republicans won the election of 1800, the Jeffersonians found that while they controlled
the presidency and Congress, the Federalists still dominated the judiciary. One of the first
acts of the new administration was to repeal the Judiciary Act of 1800, which had created
a number of new judgeships. Although President Adams had attempted to fill the
vacancies prior to the end of his term, a number of commissions had not been delivered,
and one of the appointees, William Marbury, sued Secretary of State James Madison to
force him to deliver his commission as a justice of the peace.
The new chief justice, John Marshall, understood that if the Court awarded Marbury a
writ of mandamus (an order to force Madison to deliver the commission) the Jefferson
administration would ignore it, and thus significantly weaken the authority of the courts.
On the other hand, if the Court denied the writ, it might well appear that the justices had
acted out of fear. Either case would be a denial of the basic principle of the supremacy of
the law.
Marshall's decision in this case has been hailed as a judicial tour de force. In essence, he
declared that Madison should have delivered the commission to Marbury, but then held
that the section of the Judiciary Act of 1789 that gave the Supreme Court the power to
issue writs of mandamus exceeded the authority allotted the Court under Article III of the
Constitution, and was therefore null and void. Thus he was able to chastise the
Jeffersonians and yet not create a situation in which a court order would be flouted.
The critical importance of Marbury is the assumption of several powers by the Supreme
Court. One was the authority to declare acts of Congress, and by implication acts of the
president, unconstitutional if they exceeded the powers granted by the Constitution. But
even more important, the Court became the arbiter of the Constitution, the final authority
on what the document meant. As such, the Supreme Court became in fact as well as in
theory an equal partner in government, and it has played that role ever since.
The Court would not declare another act of Congress unconstitutional until 1857, and it
has used that power sparingly. But through its role as arbiter of the Constitution, it has,
especially in the twentieth century, been the chief agency for the expansion of individual
rights. (See Part V.)
It is emphatically the province and duty of the judicial department to say what
the law is. Those who apply the rule to particular cases, must of necessity
expound and interpret that rule. If two laws conflict with each other, the courts
must decide on the operation of each. — Chief Justice John Marshall
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3. For further reading: George L. Haskins and Herbert A. Johnson, Foundations of Power:
John Marshall, 1801-1815 (1981); Donald O. Dewey, Marshall v. Jefferson: The Political
Background of Marbury v. Madison (1970).
Gibbons v. Ogden
Robert Fulton’s 1807 invention of the steamboat was highly significant, but its
application would have been severely limited had the Supreme Court not ruled against
the monopoly in interstate steamboat operation in Gibbons v. Ogden. In this decision,
Chief Justice John Marshall’s Court ruled that Congress has the power to “regulate
commerce” and that Federal law takes precedence over state laws.
The State of New York passed a law giving Robert Fulton and Robert Livingston a
monopoly on steamboat traffic on the Hudson Bay, "navigating all boats that might be
propelled by steam, on all waters within the territory, or jurisdiction of the State, for the
term of twenty years." Fulton and Livingston issued permits and seized boats that
operated without their endorsement.
Aaron Ogden had a license from the State of New York to navigate between New York
City and the New Jersey Shore. Ogden found himself competing with Thomas Gibbons,
who had been given permission to use the waterways by the Federal Government. After
the State of New York denied Gibbons access to the Hudson Bay, he sued Ogden.
The case went to the Supreme Court, and Chief Justice Marshall's opinion carried out the
clear original intent of the Constitution to have Congress, not the states, regulate
interstate commerce. Marshall’s decision sustained the nationalist definition of Federal
power and ruled that Congress could constitutionally regulate many activities that
affected interstate commerce.
In the wake of this decision, the Federal Government, empowered by the Constitution’s
commerce clause, increasingly exercised its authority by legislation and judicial decision
over the whole range of the nation’s economic life.
"... Few things were better known, than the immediate causes which led to the adoption
of the present constitution ... that the prevailing motive was to regulate commerce; to
rescue it from the embarrassing and destructive consequences, resulting from the
legislation of so many different States, and to place it under the protection of a uniform
law." —Chief Justice John Marshall
Fletcher v. Peck
An 1810 decision by the U.S. Supreme Court, Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 3
L. Ed. 162, held that public land grants were contractual obligations that could not be
voided without fair compensation, even though the state legislature that made the grant
had been corrupted and a subsequent legislature had passed an act nullifying the original
grant.
The plaintiff, Robert Fletcher, brought suit against John Peck for breach of contract on
land that Fletcher had purchased in 1803. This land was part of a tract of 35 million acres
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4. in the area of the Yazoo River (Mississippi and Alabama) that the state of Georgia had
taken from the Indians and then sold in 1795 to four land companies for a modest sum
($500,000) for so much land. The land companies then broke up the tract and resold
parcels for enormous profits.
When a new Georgia legislature learned in 1796 that some of the legislators who had
voted to sell the land had been stockholders in the companies that purchased the tract and
that many of the legislators who had authorized the sale had received bribes from the land
speculators, it rescinded the original sale on the grounds that it had been attended by
FRAUD and corruption.
The property in question had passed through several hands before Peck purchased it in
1800. Three years later, he sold the land to Fletcher with a deed stating that all the
previous sales had been legal. Fletcher, however, contended that the original sale to the
land companies was void and that Peck was guilty of breach of covenant because the land
was not legally his to sell. After a circuit court found in favor of Peck, the case came
before the U.S. Supreme Court on a writ of error.
Speaking for the Court, Chief Justice JOHN MARSHALL deplored the corruption that
had found its way into the state legislature but found that the validity of a law cannot
depend on the motives of its framers. Nor can private individuals be expected to conduct
an inquiry into the probity of a legislature before they enter into a private contract on the
basis of a statute enacted by that legislature.
Marshall then turned to the question of whether the statute enacted in 1796 could nullify
rights and claims established under the bill that had authorized the land sale in 1795.
Although he agreed that as a general principle "one legislature is competent to repeal any
act which a former legislature was competent to pass," Marshall held that actions taken
under a law cannot be undone by a subsequent legislature. If the law in question is a
contract, he reasoned, repeal of the law cannot divest rights that have vested under the
contract. To hold otherwise would be tantamount to seizing without compensation
property that an individual had acquired fairly and honestly.
In addition to basing his argument on such general considerations, Marshall found that
the original grant was a contract within the meaning of the Contract Clause of the U.S.
Constitution, which provides that "No State shall … pass any Bill of Attainder, ex post
facto Law, or Law impairing the Obligation of Contracts …" (Art. I, § 10, clause 1).
Reasoning that the Constitution did not distinguish between contracts between
individuals and contracts to which a state was a party, Marshall held that the Framers of
the Constitution intended the clause to apply to both. The purpose of the clause, he
explained, was to restrain the power of the state legislatures over the lives and property of
individuals.
Under the act rescinding the bill of 1795, however, Fletcher would forfeit the property
"for a crime not committed by himself, but by those from whom he purchased." Thus the
rescinding act "would have the effect of an ex post facto law" and would therefore be
unconstitutional. Accordingly Marshall concluded that in spite of the profits reaped by
the dishonesty of the land speculators, both general principles and the U.S. Constitution
prevented a state legislature from rendering a contract null and void.
4

5. Fletcher v. Peck was the first case in which the Supreme Court invalidated a state law as
contrary to the Constitution. It also exemplified the protective approach of the Marshall
court toward business and commercial interests. In Fletcher and later in the Dartmouth
College case (TRUSTEES OF DARTMOUTH COLLEGE V. WOODWARD, 17 U.S. [4
Wheat.], 518, 4 L. Ed. 629[1819]), the Court expanded the scope of the term contract and
limited the degree to which the states could encroach upon property rights and
contractual obligations.
McCulloch v. Maryland (1819)
In many ways, the opinion in this case represents a final step in the creation of the federal
government. The issue involved, the power of Congress to charter a bank, seems
insignificant, but the larger questions go to the very heart of constitutional interpretation,
and are still debated today.
In 1791, as part of his financial plan, Secretary of the Treasury Alexander Hamilton
proposed that Congress charter a Bank of the United States, to serve as a central bank for
the country. Secretary of State Thomas Jefferson opposed the notion, on the grounds that
the Constitution did not specifically give Congress such a power, and that under a limited
government, Congress had no powers other than those explicitly given to it. Hamilton
responded by arguing that Congress had all powers except those specifically denied to it
in the Constitution, and that moreover, the "necessary and proper" clause of Article I
required a broad reading of the designated powers. President Washington backed
Hamilton, and the bank was given a twenty-year charter. The charter expired in 1811, and
the Jeffersonians had not renewed it.
Then came the War of 1812, and President Madison realized that the government needed
the services of a central bank. In 1816, at his recommendation, Congress chartered a
second Bank of the United States (BUS), which quickly established branches throughout
the Union. Many local, state-chartered banks, eager to follow speculative policies,
resented the cautious fiscal policy of the BUS, and looked to state legislatures to restrict
the BUS operations. Maryland imposed a tax on the bank's operations, and when James
McCulloch, the cashier of the Baltimore branch of the BUS, refused to pay the tax, the
issue went to Court.
Few people expected the Court to hold the charter establishing the bank unconstitutional;
what was at issue was the extent of state power vis-a-vis federal authority. In what has
justly been termed a state paper, Chief Justice Marshall not only endorsed the
constitutionality of the bank, but went on to uphold a broad interpretation of the federal
government's powers under the Constitution, and thus pave the way for the modern
national state that would emerge after the Civil War. Although there have been some
people who have disagreed and continue to disagree with the Marshall opinion, it has for
the most part won the approval not only of subsequent courts but of the American people
as well.
Dredd Scott v. Sanford
Dred Scott's case holds a unique place in American constitutional history as an example
of the Supreme Court trying to impose a judicial solution on a political problem. It called
5

6. down enormous criticism on the Court and on Chief Justice Roger Brooke Taney; a later
chief justice, Charles Evans Hughes, described it as a great "self-inflicted wound."
Scott, born a slave, had been taken by his master, an army surgeon, into the free portion
of the Louisiana territory. Upon his master's death, Scott sued for his freedom, on the
grounds that since slavery was outlawed in the free territory, he had become a free man
there, and "once free always free." The argument was rejected by a Missouri court, but
Scott and his white supporters managed to get the case into federal court, where the issue
was simply whether a slave had standing -- that is, the legal right -- to sue in a federal
court. So the first question the Supreme Court had to decide was whether it had
jurisdiction. If Scott had standing, then the Court had jurisdiction, and the justices could
go on to decide the merits of his claim. But if, as a slave, Scott did not have standing,
then the Court could dismiss the suit for lack of jurisdiction.
The Court ruled that Scott, as a slave, could not exercise the prerogative of a free citizen
to sue in federal court. That should have been the end of the case, but Chief Justice Taney
and the other southern sympathizers on the Court hoped that a definitive ruling would
settle the issue of slavery in the territories once and for all. So they went on to rule that
the Missouri Compromise of 1820 was unconstitutional since Congress could not forbid
citizens from taking their property, i.e., slaves, into any territory owned by the United
States. A slave, Taney ruled, was property, nothing more, and could never be a citizen.
The South, of course, welcomed the ruling, but in the North it raised a storm of protest
and scorn. It helped create the Republican Party, and disgust at the decision may have
played a role in the election of Abraham Lincoln in 1860.
" . . . We think they [people of African ancestry] are . . . not included, and were
not intended to be included, under the word "citizens" in the Constitution, and
can therefore claim none of the rights and privileges which that instrument
provides for and secures to citizens of the United States. . . ." — Chief Justice
Roger B. Taney, speaking for the majority
Plessy v. Ferguson
There has been an ongoing debate among historians over the origins of racial segregation
in this country in the decades after emancipation. One group of scholars has argued that
segregation was not a predestined pattern of racial relations in the post-war South. White
masters and black slaves had lived and worked in close proximity before the Civil War,
and a variety of patterns of racial relations existed in the 1870s and 1880s. Although
southern states did not erect the legal structures that supported an extensive system of
social, economic and political segregation until the 1890s, white hostility had permeated
southern race relations for over two centuries. What is certain is that the traditions of
racism, white hostility toward blacks and the inability of the black minority to protect
itself after northern troops went home disadvantaged the former slaves from the start.
Every southern state had enacted black codes immediately after the war to keep the
former slaves under tight control. After these had been voided by the Union, white
southerners began exploring other means to maintain their supremacy over blacks.
Southern legislatures enacted criminal statutes that invariably prescribed harsher
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7. penalties for blacks than for whites convicted of the same crime, and erected a system of
peonage that survived into the early twentieth century.
In an 1878 case, the Supreme Court ruled that the states could not prohibit segregation on
common carriers, such as railroads, streetcars or steamboats. Twelve years later, it
approved a Mississippi statute requiring segregation on intrastate carriers. In doing so it
acquiesced in the South's solution to race relations.
In the best known of the early segregation cases, Plessy v. Ferguson (1896), Justice
Billings Brown asserted that distinctions based on race ran afoul of neither the Thirteenth
or Fourteenth Amendments, two of the Civil War amendments passed to abolish slavery
and secure the legal rights of the former slaves.
Although nowhere in the opinion can the phrase "separate but equal" be found, the
Court's rulings approved legally enforced segregation as long as the law did not make
facilities for blacks inferior to those of whites.
In his famous and eloquent dissent, Justice Harlan protested that states could not impose
criminal penalties on a citizen simply because he or she wished to use the public
highways and common carriers. Such laws defeated the whole purpose of the Civil War
amendments. His pleas that the "Constitution is color-blind" fell on deaf ears.
"The object of the [Fourteenth] Amendment was undoubtedly to enforce the
absolute equality of the two races before the law, but in the nature of things it
could not have been intended to abolish distinctions based upon color, or to
enforce social, as distinguished from political, equality, or a commingling of the
two races upon terms unsatisfactory to either." —Justice Henry Billings Brown,
speaking for the majority
Korematsu v. United States (1944)
Prejudice against immigrants from Asia had been longstanding on the West Coast when
World War II broke out following the Japanese attack on Pearl Harbor. Within a few
weeks the demand spread that Japanese Americans, both naturalized citizens as well as
those born in the United States, any of whom might be "saboteurs" or "spies," be
removed from the West Coast before the Japanese invaded. The fact that no proof existed
that a single one of these people constituted a threat to the United States made no
difference. Even the respected columnist Walter Lippmann informed his readers that
"nobody's constitutional rights include the right to reside and do business on a battlefield.
There is plenty of room elsewhere for him to exercise his rights."
On February 19, 1942, President Roosevelt signed Executive Order 9066 authorizing the
Secretary of War to designate parts of the country as "military areas" from which any and
all persons might be excluded, and in which travel restrictions might be imposed. A few
weeks later General John L. DeWitt, in charge of the Western Defense Command,
designated the entire Pacific coast as a military area because of its susceptibility to attack.
Curfews were established, and Japanese Americans were at first prohibited from leaving
the area, and then from being in the area. The only way Japanese Americans could
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8. comply with these contradictory orders was to submit to evacuation to relocation centers
in the interior.
The relocation program, in which 110,000 men, women and children were sent to what
were in essence prison camps, constituted the most serious invasion of individual rights
by the federal government in the nation's history. The entire operation proceeded on the
racist assumption that anyone of Japanese ancestry was a traitor.
In wartime, the old saying goes, law is silent, and the Supreme Court, which had only
recently begun to play a stronger role in protecting minority rights, was loath to interfere
with what the administration considered a necessary war measure. Three cases testing the
constitutionality of the evacuation orders were heard by the Court. In the first case,
Hirabayashi v. United States (1943), the Court sustained the legitimacy of the curfew, but
evaded ruling on the wider implications of relocation.
In the second case, Korematsu v. United States, the Court could no longer ignore the core
issue of whether loyal citizens could be summarily relocated to detention camps solely on
the basis of their race. Although a majority of the Court agreed with Justice Black's view
that military necessity justified the relocation, three members of the Court, Frank
Murphy, Owen J. Roberts and Robert H. Jackson, dissented. Justice Murphy's dissent,
which most bluntly dealt with what he termed a "legalization of racism," is included here.
On the same day, the Court unanimously authorized a writ of habeas corpus for Mitsuye
Endo, a citizen whose loyalty had been clearly established. The Court's rulings in
Hirabayashi and Korematsu were criticized by many civil libertarians and scholars from
the start, and there has been a general condemnation of them ever since.
After the war ended, the internment haunted the nation's conscience as well. In 1948
Congress took the first step in making amends, enacting the Japanese American
Evacuation Claims Act to provide some monetary compensation to those who had lost
homes and businesses because of the order. In 1980, Congress again opened the
internment issue, and this time a stream of witnesses testified, many of them for the first
time, of the hardships and psychological trauma they had suffered. The resulting report,
Personal Justice Denied (1983), condemned the removal as unjustified by military
necessity, and also concluded that the Supreme Court decisions had been "overruled in
the court of history."
"As long as my record stands in federal court, any American citizen can be held in
prison or concentration camps without trial or hearing. I would like to see the
government admit they were wrong and do something about it, so this will never
happen again to any American citizen of any race, creed, or color." —Fred
Korematsu (1983), on his decision to again challenge his conviction 40 years
later
Brown v. Board of Education
The National Association for the Advancement of Colored People (NAACP), the leading
civil rights organization in the country, had never accepted the legitimacy of the "separate
but equal" rule, and in the 1940s and 1950s had brought a series of cases designed to
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9. show that separate facilities did not meet the equality criterion. In McLaurin v. Oklahoma
State Regents (1950), a unanimous Supreme Court had struck down University of
Oklahoma rules that had permitted a black man to attend classes, but fenced him off from
other students. That same day, the Court ruled in Sweatt v. Painter that a makeshift law
school the state of Texas had created to avoid admitting blacks into the prestigious
University of Texas Law School did not come anywhere close to being equal. Whatever
else the justices knew about segregated facilities, they did know what made a good law
school, and for the first time the Court ordered a black student admitted into a previously
all-white school.
The opinion gave the NAACP and its chief legal counsel, Thurgood Marshall, the hope
that the justices were finally ready to tackle the basic question of whether segregated
facilities could ever in fact be equal. In 1952 the NAACP brought five cases before the
Court specifically challenging the doctrine of Plessy v. Ferguson. The issue that had hung
fire ever since the Civil War now had to be faced directly: what place would African
Americans enjoy in the American polity?
A number of reports indicate that the justices, while agreed that segregation was wrong,
were divided over whether the Court had the power to overrule Plessy. They therefore set
the cases down for reargument in 1953, specifically asking both sides to address
particular issues. Then Chief Justice Vinson, who reportedly opposed reversing Plessy,
unexpectedly died a few weeks before the reargument, and the new chief justice, Earl
Warren, skillfully steered the Court to its unanimous and historic ruling on May 17, 1954.
There is no question that the ruling in Brown v. Board of Education, which struck down
racially enforced school segregation, is one of the most important in American history.
No nation committed to democracy could hope to achieve those ideals while keeping
people of color in a legally imposed position of inferiority. But the decision also raised a
number of questions about the authority of the Court and whether this opinion represents
a judicial activism that, despite its inherently moral and democratic ruling, is nonetheless
an abuse of judicial authority. Other critics have pointed to what they claim is a lack of
judicial neutrality or an overreliance on allegedly flawed social science findings.
But J. Harvie Wilkinson, who is now a federal circuit court judge, dismisses much of this
criticism when he reminds us that Brown "was humane, among the most humane
moments in all our history. It was...a great political achievement, both in its uniting of the
Court and in the steady way it addressed the nation."
With this decision, the nation picked up where it had left the cause of equal protection
more than eighty years earlier, and began its efforts to integrate fully the black minority
into full partnership in the American polity.
West Virginia Board of Education v. Barnette
There are two clauses regarding religion in the First Amendment. One is the
Establishment Clause, which prohibits the government from establishing any sort of
official religion (see next document); the other is the Free Exercise Clause, which forbids
the government from restricting an individual's religious practices. Free exercise claims
often overlap claims to freedom of expression, and several of the most important religion
cases mixed issues of free speech and free exercise together.
9

10. A key element in religion clause jurisprudence is the dichotomy between belief and
action originally enunciated by Chief Justice Morrison Waite in 1879. While the First
Amendment absolutely prohibits government efforts to restrict beliefs, it does not prevent
the state from forbidding practices that threaten public order or safety. In the example
Waite used, if a sect believed in human sacrifice, the government could do nothing to
restrict that belief; but it could, without violating the Free Exercise Clause, bar the actual
sacrifice. While this belief/action analysis remains useful even today, the Court came to
recognize that in some areas belief and action overlapped.
The Jehovah's Witnesses are a relatively small sect in the United States, but they are
responsible for some of the most important cases establishing religious freedom. The
Witnesses claimed a right to proselytize, an action, without state regulation, as essential
to the free exercise of their creed, a belief. In several cases the Court upheld these claims,
but primarily on speech rather than religion clause grounds, yet these decisions are in fact
the basis for modern jurisprudence on the Free Exercise Clause.
Undoubtedly the most famous of the early free exercise cases involved the Witnesses'
refusal to salute the American flag. The sect takes literally the biblical command not to
"bow down to graven images," and considers the flag an icon. In the first case,
Minersville School District v. Gobitis (1940), Justice Felix Frankfurter sustained local
school board requirements that all students participate in the morning flag salute ritual.
Frankfurter rejected the free exercise claim almost summarily, noting that civic
obligations outweighed religious convictions. One should note that Gobitis was decided
with Europe already at war and the United States rearming. Patriotism seemed the highest
value to many, including eight members of the Court; only Justice Harlan Fiske Stone
dissented, charging that the required salute violated freedom of speech and of religion.
The Witnesses refused to compromise and, in spite of enormous public hostility, clung to
their outspoken religious beliefs. But in the growing climate of intense patriotism that
accompanied American entry into the war, the Witnesses suffered considerably for their
beliefs, and there were numerous instances of persecution, including physical assaults on
children. Such a condition could hardly win approval as news began to filter out of
Europe about Hitler's "final solution" to the Jewish problem.
As a result, the Court took another flag salute case, and this time reversed itself. Justice
Jackson, using Holmes's clear and present danger test, found that the Witnesses' refusal to
salute the flag harmed no one, did not violate anyone else's rights and posed no danger to
public order. Probably no other case so clearly caught the intent of the framers of the
First Amendment that religious freedom meant not only the absence of an established
church, but also the right of each individual to worship -- or not to worship -- as he or she
saw fit, as long as it did not interfere with the rights of others. Democracy demanded,
according to Jackson, not merely toleration of the majority of differing beliefs, but full
freedom for the minorities to practice their faiths without fear of the majority.
Engel ET AL v. Vitale ET AL.
The respondent Board of Education of Union Free School District No. 9, New Hyde
Park, New York, acting in its official capacity under state law, directed the School
District's principal to cause the following prayer to be said aloud by each class in the
presence of a teacher at the beginning of each school day:
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11. "Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings
upon us, our parents, our teachers and our Country."
This daily procedure was adopted on the recommendation of the State Board of Regents,
a governmental agency created by the State Constitution to which the New York
Legislature has granted broad supervisory, executive, and legislative powers over the
State's public school system. 1 These state officials composed the prayer which they
recommended and published as a part of their "Statement on Moral and Spiritual Training
in the Schools," saying: "We believe that this Statement will be subscribed to by all men
and women of good will, and we call upon all of them to aid in giving life to our
program."
Shortly after the practice of reciting the Regents' prayer was adopted by the School
District, the parents of ten pupils brought this action in a New York State Court insisting
that use of this official prayer in the public schools was contrary to the beliefs, religions,
or religious practices of both themselves and their children. Among other things, these
parents challenged the constitutionality of both the state law authorizing the School
District to direct the use of prayer in public schools and the School District's regulation
ordering the recitation of this particular prayer on the ground that these actions of official
governmental agencies violate that part of the First Amendment of the Federal
Constitution which commands that "Congress shall make no law respecting an
establishment of religion" -- a command which was "made applicable to the State of New
York by the Fourteenth Amendment of the said Constitution." The New York Court of
Appeals, over the dissents of Judges Dye and Fuld, sustained an order of the lower state
courts which had upheld the power of New York to use the Regents' prayer as a part of
the daily procedures of its public schools so long as the schools did not compel any pupil
to join in the prayer over his or his parents' objection. 2 We granted certiorari to review
this important decision involving rights protected by the First and Fourteenth
Amendments. 3
We think that by using its public school system to encourage recitation of the Regents'
prayer, the State of New York has adopted a practice wholly inconsistent with the
Establishment Clause. There can, of course, be no doubt that New York's program of
daily classroom invocation of God's blessings as prescribed in the Regents' prayer is a
religious activity. It is a solemn avowal of divine faith and supplication for the blessings
of the Almighty. The nature of such a prayer has always been religious, none of the
respondents has denied this and the trial court expressly so found:
"The religious nature of prayer was recognized by Jefferson and has been concurred in by
theological writers, the United States Supreme Court and State courts and administrative
officials, including New York's Commissioner of Education. A committee of the New
York Legislature has agreed.
"The Board of Regents as amicus curiae, the respondents and intervenors all concede the
religious nature of prayer, but seek to distinguish this prayer because it is based on our
spiritual heritage . . . ." 4
The petitioners contend among other things that the state laws requiring or permitting use
of the Regents' prayer must be struck down as a violation of the Establishment Clause
because that prayer was composed by governmental officials as a part of a governmental
program to further religious beliefs. For this reason, petitioners argue, the State's use of
11

12. the Regents' prayer in its public school system breaches the constitutional wall of
separation between Church and State. We agree with that contention since we think that
the constitutional prohibition against laws respecting an establishment of religion must at
least mean that in this country it is no part of the business of government to compose
official prayers for any group of the American people to recite as a part of a religious
program carried on by government.
The Court decided:
It is true that New York's establishment of its Regents' prayer as an officially approved
religious doctrine of that State does not amount to a total establishment of one particular
religious sect to the exclusion of all others -- that, indeed, the governmental endorsement
of that prayer seems relatively insignificant when compared to the governmental
encroachments upon religion which were commonplace 200 years ago. To those who
may subscribe to the view that because the Regents' official prayer is so brief and general
there can be no danger to religious freedom in its governmental establishment, however,
it may be appropriate to say in the words of James Madison, the author of the First
Amendment:
"It is proper to take alarm at the first experiment on our liberties. . . . Who does not see
that the same authority which can establish Christianity, in exclusion of all other
Religions, may establish with the same ease any particular sect of Christians, in exclusion
of all other Sects? That the same authority which can force a citizen to contribute three
pence only of his property for the support of any one establishment, may force him to
conform to any other establishment in all cases whatsoever?" 22
MAPP v. OHIO
No. 236
March 29, 1961, Argued June 19, 1961, Decided
On May 23, 1957, three Cleveland police officers arrived at appellant's residence in that
city pursuant to information that "a person [was] hiding out in the home, who was wanted
for questioning in connection with a recent bombing, and that there was a large amount of
policy paraphernalia being hidden in the home." Miss Mapp and her daughter by a former
marriage lived on the top floor of the two-family dwelling. Upon their arrival at that
house, the officers knocked on the door and demanded entrance but appellant, after
telephoning her attorney, refused to admit them without a search warrant. They advised
their headquarters of the situation and undertook a surveillance of the house.
The officers again sought entrance some three hours later when four or more additional
officers arrived on the scene. When Miss Mapp did not come to the door immediately, at
least one of the several doors to the house was forcibly opened 2 and the policemen
gained admittance. Meanwhile Miss Mapp's attorney arrived, but the officers, having
secured their own entry, and continuing in their defiance of the law, would permit him
neither to see Miss Mapp nor to enter the house. It appears that Miss Mapp was halfway
down the stairs from the upper floor to the front door when the officers, in this
highhanded manner, broke into the hall. She demanded to see the search warrant. A
paper, claimed to be a warrant, was held up by one of the officers. She grabbed the
"warrant" and placed it in her bosom. A struggle ensued in which the officers recovered
the piece of paper and as a result of which they handcuffed appellant because she had
12

13. been "belligerent" in resisting their official rescue of the "warrant" from her person.
Running roughshod over appellant, a policeman "grabbed" her, "twisted [her] hand," and
she "yelled [and] pleaded with him" because "it was hurting." Appellant, in handcuffs,
was then forcibly taken upstairs to her bedroom where the officers searched a dresser, a
chest of drawers, a closet and some suitcases. They also looked into a photo album and
through personal papers belonging to the appellant. The search spread to the rest of the
second floor including the child's bedroom, the living room, the kitchen and a dinette.
The basement of the building and a trunk found therein were also searched. The obscene
materials for possession of which she was ultimately convicted were discovered in the
course of that widespread search.
At the trial no search warrant was produced by the prosecution, nor was the failure to
produce one explained or accounted for. At best, "There is, in the record, considerable
doubt as to whether there ever was any warrant for the search of defendant's home." 170
Ohio St., at 430, 166 N. E. 2d, at 389. The Ohio Supreme Court believed a "reasonable
argument" could be made that the conviction should be reversed "because the 'methods'
employed to obtain the [evidence] . . . were such as to 'offend "a sense of justice,"'" but
the court found determinative the fact that the evidence had not been taken "from
defendant's person by the use of brutal or offensive physical force against defendant."
170 Ohio St., at 431, 166 N. E. 2d, at 389-390.
The State says that even if the search were made without authority, or otherwise
unreasonably, it is not prevented from using the unconstitutionally seized evidence at
trial, citing Wolf v. Colorado, 338 U.S. 25 (1949), in which this Court did indeed hold
"that in a prosecution in a State court for a State crime the Fourteenth Amendment does
not forbid the admission of evidence obtained by an unreasonable search and seizure." At
p. 33. On this appeal, of which we have noted probable jurisdiction, 364 U.S. 868, it is
urged once again that we review that holding. 3
The Court decided:
The ignoble shortcut to conviction left open to the State tends to destroy the entire system
of constitutional restraints on which the liberties of the people rest. 11 Having once
recognized that the right to privacy embodied in the Fourth Amendment is enforceable
against the States, and that the right to be secure against rude invasions of privacy by
state officers is, therefore, constitutional in origin, we can no longer permit that right to
remain an empty promise. Because it is enforceable in the same manner and to like effect
as other basic rights secured by the Due Process Clause, we can no longer permit it to be
revocable at the whim of any police officer who, in the name of law enforcement itself,
chooses to suspend its enjoyment. Our decision, founded on reason and truth, gives to the
individual no more than that which the Constitution guarantees him, to the police officer
no less than that to which honest law enforcement is entitled, and, to the courts, that
judicial integrity so necessary in the true administration of justice.
GIDEON V. WAINWRIGHT (1963)
Clarence Earl Gideon was charged in Florida state court with a felony: having
broken into and entered a poolroom with the intent to commit a misdemeanor
13

14. offense. When he appeared in court without a lawyer, Gideon requested that the
court appoint one for him. According to Florida state law, however, an attorney
may only be appointed to an indigent defendant in capital cases, so the trial court
did not appoint one. Gideon represented himself in trial. He was found guilty and
sentenced to five years in prison. Gideon filed a habeas corpus petition in the
Florida Supreme Court and argued that the trial court's decision violated his
constitutional right to be represented by counsel. The Florida Supreme Court
denied habeas corpus relief.
Does the Sixth Amendment's right to counsel in criminal cases extend to felony
defendants in state courts?
Justice Hugo L. Black delivered the opinion of the 9-0 majority. The Supreme
Court held that the framers of the Constitution placed a high value on the right of
the accused to have the means to put up a proper defense, and the state as well as
federal courts must respect that right. The Court held that it was consistent with
the Constitution to require state courts to appoint attorneys for defendants who
could not afford to retain counsel on their own.
Justice William O. Douglas wrote a concurring opinion in which he argued that
the Fourteenth Amendment does not apply a watered-down version of the Bill of
Rights to the states. Since constitutional questions are always open for
consideration by the Supreme Court, there is no need to assert a rule about the
relationship between the Fourteenth Amendment and the Bill of Rights. In his
separate opinion concurring in judgment, Justice Tom C. Clark wrote that the
Constitution guarantees the right to counsel as a protection of due process, and
there is no reason to apply that protection in certain cases but not others. Justice
John M. Harlan wrote a separate concurring opinion in which he argued that the
majority's decision represented an extension of earlier precedent that established
the existence of a serious criminal charge to be a "special circumstance" that
requires the appointment of counsel. He also argued that the majority's opinion
recognized a right to be valid in state courts as well as federal ones; it did not
apply a vast body of federal law to the states.
14

15. ESCOBEDO v. ILLINOIS
Petitioner, a 22-year-old of Mexican extraction, was arrested with his sister and taken to
police headquarters for interrogation in connection with the fatal shooting, about 11 days
before, of his brother-in-law. He had been arrested shortly after the shooting, but had
made no statement, and was released after his lawyer obtained a writ of habeas corpus
from a state court. Petitioner made several requests to see his lawyer, who, though
present in the building, and despite persistent efforts, was refused access to his client.
Petitioner was not advised by the police of his right to remain silent and, after persistent
questioning by the police, made a damaging statement to an Assistant State's Attorney
which was admitted at the trial. Convicted of murder, he appealed to the State Supreme
Court, which affirmed the conviction. Held: Under the circumstances of this case, where
a police investigation is no longer a general inquiry into an unsolved crime but has begun
to focus on a particular suspect in police custody who has been refused an opportunity to
consult with his counsel and who has not been warned of his constitutional right to keep
silent, the accused has been denied the assistance of counsel in violation of the Sixth and
Fourteenth Amendments; and no statement extracted by the police during the
interrogation may be used against him at a trial. Crooker v. California, 357 U.S. 433, and
Cicenia v. Lagay, 357 U.S. 504, distinguished, and to the extent that they may be
inconsistent with the instant case, they are not controlling.
"State refusal of a request to engage counsel violates due process not only if the accused
is deprived of counsel at trial on the merits, . . . but also if he is deprived of counsel for
any part of the pretrial proceedings, provided that he is so prejudiced thereby as to infect
his subsequent trial with an absence of 'that fundamental fairness essential to the very
concept of justice. . . .' The latter determination necessarily depends upon all the
circumstances of the case." 357 U.S., at 439-440. (Emphasis added.)
The Court, applying "these principles" to "the sum total of the circumstances [there]
during the time petitioner was without counsel," id., at 440, concluded that he had not
been fundamentally prejudiced by the denial of his request for counsel. Among the
critical circumstances which distinguish that case from this one are that the petitioner
there, but not here, was explicitly advised by the police of his constitutional right to
remain silent and not to "say anything" in response to the questions, id., at 437, and that
petitioner there, but not here, was a well-educated man who had studied criminal law
while attending law school for a year. The Court's opinion in Cicenia v. Lagay, 357 U.S.
504, decided the same day, merely said that the "contention that petitioner had a
constitutional right to confer with counsel is disposed of by Crooker v. California . . . ."
That case adds nothing, therefore, to Crooker. In any event, to the extent that Cicenia or
Crooker may be inconsistent with the principles announced today, they are not to be
regarded as controlling. 15
Nothing we have said today affects the powers of the police to investigate "an unsolved
crime," Spano v. New York, 360 U.S. 315, 327 (STEWART, J., concurring), by
gathering information from witnesses and by other "proper investigative efforts." Haynes
v. Washington, 373 U.S. 503, 519. We hold only that when the process shifts from
investigatory to accusatory -- when its focus is on the accused and its purpose is to elicit a
confession -- our adversary system begins to operate, and, under the circumstances here,
the accused must be permitted to consult with his lawyer.
15

16. Miranda v. Arizona
The Court was called upon to consider the constitutionality of a number of instances,
ruled on jointly, in which defendants were questioned "while in custody or otherwise
deprived of [their] freedom in any significant way." In Vignera v. New York, the
petitioner was questioned by police, made oral admissions, and signed an inculpatory
statement all without being notified of his right to counsel. Similarly, in Westover v.
United States, the petitioner was arrested by the FBI, interrogated, and made to sign
statements without being notified of his right to counsel. Lastly, in California v. Stewart,
local police held and interrogated the defendant for five days without notification of his
right to counsel. In all these cases, suspects were questioned by police officers,
detectives, or prosecuting attorneys in rooms that cut them off from the outside world. In
none of the cases were suspects given warnings of their rights at the outset of their
interrogation.
Does the police practice of interrogating individuals without notifying them of their
right to counsel and their protection against self-incrimination violate the Fifth
Amendment?
“The cases before us raise questions which go to the roots of our concepts of American
criminal jurisprudence: the restraints society must observe consistent with the Federal
Constitution in prosecuting individuals for crime. More specifically, we deal with the
admissibility of statements obtained from an individual who is subjected to custodial
police interrogation and the necessity for procedures which assure that the individual is
accorded his privilege under the Fifth Amendment to the Constitution not to be
compelled to incriminate himself. . . .
Our holding will be spelled out with some specificity in the pages which follow but
briefly stated it is this: the prosecution may not use statements, whether exculpatory or
inculpatory, stemming from custodial interrogation of the defendant unless it
demonstrates the use of procedural safeguards effective to secure the privilege against
self-incrimination. By custodial interrogation, we mean questioning initiated by law
enforcement officers after a person has been taken into custody. . . . As for the procedural
safeguards to be employed . . . the following measures are required. Prior to any
questioning, the person must be warned that he has a right to remain silent, that any
statement he does make may be used as evidence against him, and that he has a right to
the presence of an attorney, either retained or appointed. The defendant may waive
effectuation of these rights, provided the waiver is made voluntarily, knowingly and
intelligently. If, however, he indicates in any manner and at any stage of the process that
he wishes to consult with an attorney before speaking there can be no questioning.
Likewise, if the individual is alone and indicates in any manner that he does not wish to
be interrogated, the police may not question him. The mere fact that he may have
answered some questions or volunteered some statements on his own does not deprive
him of the right to refrain from answering any further inquiries until he has consulted
with an attorney and thereafter consents to be questioned. . . . The Fifth Amendment
privilege is so fundamental to our system of constitutional rule and the expedient of
giving an adequate warning as to the availability of the privilege so simple, we will not
pause to inquire in individual cases whether the defendant was aware of his rights without
a warning being given. . . .
16

17. The warning of the right to remain silent must be accompanied by the explanation that
anything said can and will be used against the individual in court. This warning is needed
in order to make him aware not only of the privilege, but also of the consequences of
forgoing it. . . . [T]his warning may serve to make the individual more acutely aware that
he is faced with a phase of the adversary system-that he is not in the presence of persons
acting solely in his interests. . . .
. . . [W]e hold that an individual held for interrogation must be clearly informed that he
has the right to consult with a lawyer and to have the lawyer with him during
interrogation under the system for protecting the privilege we delineate today. . . . No
amount of circumstantial evidence that the person may have been aware of this right will
suffice to stand in its stead: Only through such a warning is there ascertainable assurance
that the accused was aware of this right.
If an individual indicates that he wishes the assistance of counsel before any
interrogation occurs, the authorities cannot rationally ignore or deny his request
on the basis that the individual does not have or cannot afford a retained
attorney. . . . The privilege against self-incrimination secured by the Constitution
applies to all individuals. The need for counsel in order to protect the privilege
exists for the indigent as well as the affluent. . . .
The principles announced today deal with the protection which must be given to the
privilege against self-incrimination when the individual is first subjected to police
interrogation while in custody at the station or otherwise deprived of his freedom
of action in any significant way. It is at this point that our adversary system of
criminal proceedings commences, distinguishing itself at the outset from the
inquisitorial system recognized in some countries. Under the system of warnings
we delineate today or under any other system which may be devised and found
effective, the safeguards to be erected about the privilege must come into play at
this point. . . .
. . . [W]e hold that when an individual is taken into custody or otherwise deprived of his
freedom by the authorities in any significant way and is subjected to questioning,
the privilege against self-incrimination is jeopardized. . . .”
Near v. Minnesota
Minnesota had authorized abatement (the prevention of publication), as a public
nuisance, of any "malicious, scandalous or defamatory" publication. The law was
specifically aimed at the Saturday Press, a Minneapolis tabloid that in addition to
exploiting rumors had uncovered some embarrassing facts about local political and
business figures.
Jay Near published a scandal sheet in Minneapolis, in which he attacked local officials,
charging that they were implicated with gangsters. Minnesota officials obtained an
injunction to prevent Near from publishing his newspaper under a state law that allowed
such action against periodicals. The law provided that any person "engaged in the
business" of regularly publishing or circulating an "obscene, lewd, and lascivious" or a
"malicious, scandalous and defamatory" newspaper or periodical was guilty of a
nuisance, and could be enjoined (stopped) from further committing or maintaining the
17

18. nuisance. The Court was asked, does the Minnesota "gag law" violate the free press
provision of the First Amendment?
The decision is important in two respects. First, it continued the process, begun only a
few years earlier, of extending the protection of the Bill of Rights to cover the states as
well as the federal government. Although the First Amendment says that "Congress shall
make no law ...," the Court in a series of rulings held that the Due Process Clause of the
Fourteenth Amendment "incorporates" the provisions of the Bill of Rights and makes
them applicable to the states as well. In effect, the First Amendment now reads, "Neither
Congress nor any state shall make any law ..."
Second, the Court established, as a central tenet of the Press Clause, that the government
has no power of prior restraint; that is, the government cannot censor the press and
prevent publication. This did not mean that a newspaper could not be held liable for false
and defamatory statements, but that would remain a matter to be proven in court.
Governments could not rule that such materials were libelous and thus prevent
publication.
The decision did not so much create new law as expand and confirm the older notion of
freedom of the press. Chief Justice Hughes quoted approvingly from Blackstone that
liberty of the press "consists in laying no previous restraints upon publication, and not in
freedom from censure for criminal matter when published."
New York Times v. United States
In a democracy, there is always a tension between a free press and the government,
between what the government claims ought to be kept confidential and what reporters
believe the public ought to know. Rarely has this conflict been clearer than in the
celebrated Pentagon Papers case.
In 1967 Secretary of Defense Robert S. McNamara ordered a full-scale evaluation of how
the United States became involved in the Vietnam War. A study team of thirty-six
persons took more than a year to compile the report, which ran to forty-seven volumes,
with some 4,000 pages of documentary evidence and 3,000 pages of analysis. Daniel
Ellsberg, a former Defense Department economist who had grown disillusioned with the
war, copied major portions of the study and then turned them over to the press. On June
13, 1971, the New York Times began publishing the papers, and the Nixon
administration immediately sought to stop further publication.
In Near v. Minnesota, Chief Justice Hughes had noted that the rule against prior restraint
would not apply in certain cases. No one would question, Hughes declared, "that a
government might prevent actual obstruction to its recruiting service or the publication of
the sailing days of transports or the number and location of troops." Using this theory, the
Justice Department secured a temporary injunction against the Times. The Washington
Post then picked up publication, and when the administration went to court against that
paper, the Boston Globe began publication. In an unusual move, the Supreme Court
expedited the appeals process, and heard oral argument on June 26, and four days later,
18

19. on June 30 -- seventeen days after the Times ran the first installment -- handed down its
decision.
The speed is noteworthy for several reasons, not least of which is the importance that
both the administration and the Court gave to the necessity to decide the issue. The speed
also accounts, at least in part, for the failure of a majority to form around a single
opinion. Instead the Court announced a brief per curiam decision, in which it noted that
the government always had a heavy burden to bear in proving why prior restraint should
be permitted, and it had failed to do so in this case. The various justices then set out their
views of freedom of the press.
The rationale behind the pilfering of the Pentagon documents and then providing copies
to the press had been to inform the public of what Ellsberg charged was double-dealing
and lying by the government regarding the Vietnam War. The people, according this
theory, had a right to know what its government had done. General Maxwell Taylor, who
had been ambassador to South Vietnam during the early stages of the war, condemned
this idea. A citizen's right to know, he declared, is limited "to those things he needs to
know to be a good citizen and discharge his functions, but not to...secrets that damage his
government and indirectly the citizen himself."
Some members of the Court, notably Justice Potter Stewart, did believe in this notion of a
citizen's right to know, and Stewart put forward the theory of the press serving as a
surrogate for the people, ferreting out information for them and securing the material to
which they had a right. Not all members of the Court endorsed this "functional" theory of
the press, but Chief Justice Burger later commented that despite the split vote, the justices
were "actually unanimous." In many ways, this was true. All of the justices did believe in
the basic doctrine of no prior restraint, first set out in the Near case, and with the
exception of Justices Black and Douglas, who took an absolutist stance against any
government censorship of any issue at any time, the entire Court agreed that government
should not censor the press, that no prior restraint was the rule except in very unusual
circumstances.
Tinker v. Des Moines Ind. Comm. School
John Tinker, 15 years old, his sister Mary Beth Tinker, 13 years old, and Christopher
Echardt, 16 years old, decided along with their parents to protest the Vietnam War by
wearing black armbands to their Des Moines schools during the Christmas holiday
season. Upon learning of their intentions, and fearing that the armbands would provoke
disturbances, the principals of the Des Moines school district resolved that all students
wearing armbands be asked to remove them or face suspension. When the Tinker
siblings and Christopher wore their armbands to school, they were asked to remove
them. When they refused, they were suspended until after New Year's Day.
Does a prohibition against the wearing of armbands in public school, as a form of
symbolic protest, violate the First Amendment's freedom of speech protections?
“. . . First Amendment rights, applied in light of the special characteristics of the school
environment, are available to teachers and students. It can hardly be argued that either
students or teachers shed their constitutional rights to freedom of speech or expression
at the schoolhouse gate. . . .
19

20. . . . The Fourteenth Amendment, as now applied to the States, protects the citizen
against the State itself and all of its creatures - Boards of Education not excepted.
These have, of course, important, delicate, and highly discretionary functions, but none
that they may not perform within the limits of the Bill of Rights. That they are
educating the young for citizenship is reason for scrupulous protection of
Constitutional freedoms of the individual, if we are not to strangle the free mind at its
source and teach youth to discount important principles of our government as mere
platitudes. . . .
. . . On the other hand, the Court has repeatedly emphasized the need for affirming the
comprehensive authority of the States and of school officials, consistent with
fundamental constitutional safeguards, to prescribe and control conduct in the schools.
Our problem involves direct, primary First Amendment rights akin to "pure speech"
. . . In order for the State in the person of school officials to justify prohibition of a
particular expression of opinion, it must be able to show that its action was caused by
something more than a mere desire to avoid the discomfort and unpleasantness that
always accompany an unpopular viewpoint. Certainly where there is no finding and no
showing that engaging in the forbidden conduct would "materially and substantially
interfere with the requirements of appropriate discipline in the operation of the school,"
the prohibition cannot be sustained . . .
. . . the record fails to yield evidence that the school authorities had reason to anticipate
that the wearing of the armbands would substantially interfere with the work of the
school or impinge upon the rights of other students . . . [and] the school officials
banned and sought to punish petitioners for a silent, passive expression of opinion,
unaccompanied by any disorder or disturbance on the part of petitioners. . . .
It is also relevant that the school authorities did not purport to prohibit the wearing of
all symbols of political or controversial significance . . . Instead, a particular symbol -
black armbands worn to exhibit opposition to this Nation's involvement in Vietnam -
was singled out for prohibition. Clearly, the prohibition of expression of one particular
opinion, at least without evidence that it is necessary to avoid material and substantial
interference with schoolwork or discipline, is not constitutionally permissible. In our
system, state-operated schools may not be enclaves of totalitarianism. School officials
do not possess absolute authority over their students. Students in school as well as out
of school are "persons" under our Constitution. In the absence of a specific showing of
constitutionally valid reasons to regulate their speech, students are entitled to freedom
of expression of their views. . . .”
Texas v. Johnson
In 1984, in front of the Dallas City Hall, Gregory Lee Johnson burned an American
flag as a means of protest against Reagan administration policies. Johnson was tried
and convicted under a Texas law outlawing flag desecration. He was sentenced to one
year in jail and assessed a $2,000 fine. After the Texas Court of Criminal Appeals
reversed the conviction, the case went to the Supreme Court.
Is the desecration of an American flag, by burning or otherwise, a form of speech that
is protected under the First Amendment?
20

21. “The First Amendment literally forbids the abridgment only of "speech", but we
have long recognized that its protection does not end at the spoken or written
word. While we have rejected "the view that an apparently limitless variety of
conduct can be labeled 'speech whenever the person engaging in the conduct
intends thereby to express an idea," . . . we have acknowledged that conduct may
be "sufficiently imbued with elements of communication to fall within the scope of
the First and Fourteenth Amendments," . . .Instead, in characterizing such action
for First Amendment purposes, we have considered the context in which it
occurred. . . Johnson burned an American flag as part - indeed, as the
culmination - of a political demonstration that coincided with the convening of the
Republican Party and its re-nomination of Ronald Reagan for President. The
expressive, overtly political nature of this conduct was both intentional and
overwhelmingly apparent. . . .
The government generally has a freer hand in restricting expressive conduct than
it has in restricting the written or spoken word. . . . It may not, however,
proscribe particular conduct because it has expressive elements. . . .It remains to
consider whether the State's interest in preserving the flag as a symbol of
nationhood and national unity justifies Johnson's conviction.
. . . Johnson was not, we add, prosecuted for the expression of just any idea; he
was prosecuted for his expression of dissatisfaction with the policies of this
country, expression situated at the core of our First Amendment values. . . .If
there is a bedrock principle underlying the First Amendment, it is that the
government may not prohibit the expression of an idea simply because society
finds the idea itself offensive or disagreeable. . . .To conclude that the government
may permit designated symbols to be used to communicate only a limited set of
messages would be to enter territory having no discernible or defensible
boundaries. Could the government, on this theory, prohibit the burning of state
flags? Of copies of the Presidential seal? Of the Constitution? In evaluating these
choices under the First Amendment, how would we decide which symbols were
sufficiently special to warrant this unique status? To do so, we would be forced to
consult our own political preferences, and impose them on the citizenry, in the
very way that the First Amendment forbids us to do. . . There is, moreover, no
indication-either in the text of the Constitution or in our cases interpreting it-that
a separate juridical category exists for the American flag alone . . . It is not the
State's ends, but its means, to which we object. It cannot be gainsaid that there is
a special place reserved for the flag in this Nation, and thus we do not doubt that
the government has a legitimate interest in making efforts to "preserv[e] the
national flag as an unalloyed symbol of our country." . . . To say that the
government has an interest in encouraging proper treatment of the flag, however,
is not to say that it may criminally punish a person for burning a flag as a means
of political protest.
We are tempted to say . . . that the flag's deservedly cherished place in our
community will be strengthened, not weakened, by our holding today. Our
decision is a reaffirmation of the principles of freedom and inclusiveness that the
flag best reflects, and of the conviction that our toleration of criticism such as
Johnson's is a sign and source of our strength. Indeed, one of the proudest images
of our flag, the one immortalized in our own national anthem, is of the
bombardment it survived at Fort McHenry. It is the Nation's resilience, not its
rigidity that Texas sees reflected in the flag-and it is that resilience that we
21

22. reassert today. The way to preserve the flag's special role is not to punish those
who feel differently about these matters. It is to persuade them that they are
wrong . . . We can imagine no more appropriate response to burning a flag than
waving one's own, no better way to counter a flag burner's message than by
saluting the flag that burns, no surer means of preserving the dignity even of the
flag that burned than by-as one witness here did-according its remains a
respectful burial. We do not consecrate the flag by punishing its desecration, for
in doing so we dilute the freedom that this cherished emblem represents.
Johnson was convicted for engaging in expressive conduct. The State's interest in
preventing breaches of the peace does not support his conviction because
Johnson's conduct did not threaten to disturb the peace. Nor does the State's
interest in preserving the flag as a symbol of nationhood and national unity justify
his criminal conviction for engaging in political expression. The judgment of the
Texas Court of Criminal Appeals is therefore Affirmed.”
Griswold v. Connecticut
Griswold was the Executive Director of the Planned Parenthood League of Connecticut.
Both she and the Medical Director for the League gave information, instruction, and
other medical advice to married couples concerning birth control. Griswold and her
colleague were convicted under a Connecticut law which criminalized the provision of
counselling, and other medical treatment, to married persons for purposes of preventing
conception.
Does the Constitution protect the right of marital privacy against state restrictions on a
couple's ability to be counseled in the use of contraceptives?
“Various guarantees create zones of privacy. The right of association contained in the
penumbra of the First Amendment is one, as we have seen. The Third Amendment in its
prohibition against the quartering of soldiers "in any house" in time of peace without the
consent of the owner is another facet of that privacy. The Fourth Amendment explicitly
affirms the "right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures." The Fifth Amendment in its Self-
Incrimination Clause enables the citizen to create a zone of privacy which government
may not force him to surrender to his detriment. The Ninth Amendment provides: "The
enumeration in the Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people."
We have had many controversies over these penumbral rights of "privacy and repose."
These cases bear witness that the right of privacy which presses for recognition here is a
legitimate one.
The present case, then, concerns a relationship lying within the zone of privacy created
by several fundamental constitutional guarantees. And it concerns a law which, in
forbidding the use of contraceptives rather than regulating their manufacture or sale,
seeks to achieve its goals by means having a maximum destructive impact upon that
relationship. Such a law cannot stand in light of the familiar principle, so often applied by
this Court, that a "governmental purpose to control or prevent activities constitutionally
subject to state regulation may not be achieved by means which sweep unnecessarily
22

23. broadly and thereby invade the area of protected freedoms." Would we allow the police
to search the sacred precincts of marital bedrooms for telltale signs of the use of
contraceptives? The very idea is repulsive to the notions of privacy surrounding the
marriage relationship.
We deal with a right of privacy older than the Bill of Rights - older than our political
parties, older than our school system. Marriage is a coming together for better or for
worse, hopefully enduring, and intimate to the degree of being sacred. It is an association
that promotes a way of life, not causes; a harmony in living, not political faiths; a
bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a
purpose as any involved in our prior decisions.”
Roe v. Wade
Roe, a Texas resident, sought to terminate her pregnancy by abortion. Texas law
prohibited abortions except to save the pregnant woman's life.
Does the Constitution embrace a woman's right to terminate her pregnancy by
abortion?
“This right of privacy, whether it be founded in the Fourteenth Amendment's concept
of personal liberty and restrictions upon state action, as we feel it is, or, as the District
Court determined, in the Ninth Amendment's reservation of rights to the people, is
broad enough to encompass a woman's decision whether or not to terminate her
pregnancy. The detriment that the State would impose upon the pregnant woman by
denying this choice altogether is apparent. Specific and direct harm medically
diagnosable even in early pregnancy may be involved. Maternity, or additional
offspring, may force upon the woman a distressful life and future. Psychological harm
may be imminent. Mental and physical health may be taxed by child care. There is also
the distress, for all concerned, associated with the unwanted child, and there is the
problem of bringing a child into a family already unable, psychologically and
otherwise, to care for it. In other cases, as in this one, the additional difficulties and
continuing stigma of unwed motherhood may be involved. All these are factors the
woman and her responsible physician necessarily will consider in consultation.
On the basis of elements such as these, appellant and some amici argue that the
woman's right is absolute and that she is entitled to terminate her pregnancy at
whatever time, in whatever way, and for whatever reason she alone chooses. With this
we do not agree. Appellant's arguments that Texas either has no valid interest at all in
regulating the abortion decision, or no interest strong enough to support any limitation
upon the woman's sole determination, are unpersuasive. The Court's decisions
recognizing a right of privacy also acknowledge that some state regulation in areas
protected by that right is appropriate. As noted above, a State may properly assert
important interests in safeguarding health, in maintaining medical standards, and in
protecting potential life. At some point in pregnancy, these respective interests become
sufficiently compelling to sustain regulation of the factors that govern the abortion
decision. The privacy right involved, therefore, cannot be said to be absolute. In fact, it
is not clear to us that the claim asserted by some amici that one has an unlimited right
to do with one's body as one pleases bears a close relationship to the right of privacy
previously articulated in the Court's decisions. The Court has refused to recognize an
unlimited right of this kind in the past.”
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24. Lawrence and Garner v. Texas (2003)
Responding to a reported weapons disturbance in a private residence, Houston police
entered John Lawrence's apartment and saw him and another adult man, Tyron Garner,
engaging in a private, consensual sexual act. Lawrence and Garner were arrested and
convicted of deviate sexual intercourse in violation of a Texas statute forbidding two
persons of the same sex to engage in certain intimate sexual conduct. In affirming, the
State Court of Appeals held that the statute was not unconstitutional under the Due
Process Clause of the Fourteenth Amendment, with Bowers v. Hardwick, 478 U.S. 186
(1986), controlling.
Do the criminal convictions of John Lawrence and Tyron Garner under the Texas
"Homosexual Conduct" law, which criminalizes sexual intimacy by same-sex couples,
but not identical behavior by different-sex couples, violate the Fourteenth Amendment
guarantee of equal protection of laws? Do their criminal convictions for adult consensual
sexual intimacy in the home violate their vital interests in liberty and privacy protected
by the Due Process Clause of the Fourteenth Amendment? Should Bowers v. Hardwick,
478 U.S. 186 (1986), be overruled?
“Liberty protects the person from unwarranted government intrusions. Freedom extends
beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of
thought, belief, expression, and certain intimate conduct. The defendants are adults and
their conduct was in private and consensual.
The right to privacy is the right of the individual, married or single, to be free from
unwarranted governmental intrusion into matters so fundamentally affecting a person as
the decision whether to bear or beget a child.
Roe v. Wade recognized the right of a woman to make certain fundamental decisions
affecting her destiny and confirmed that the protection of liberty under the Due Process
Clause has a substantive dimension of fundamental significance in defining the rights of
the person. It is clear that in Bowers v. Hardwick this Court failed to appreciate the extent
of the liberty at stake. To declare the issue as one related to the right to engage in certain
sexual conduct demeans the claim the individual put forward, just as it would demean a
married couple were it to be said marriage is simply about the right to have sexual
intercourse.”
United States v. Nixon
In November 1972, Richard Nixon won a second term as president, decisively defeating
the Democratic candidate, George McGovern. But toward the end of the campaign a
group of burglars broke into the Democratic Party campaign headquarters in
Washington's Watergate complex. Thanks in large part to the determined investigative
reporting of the Washington Post, what had been a small news story soon expanded, as
reporters uncovered tracks leading to high government officials. The Nixon
administration denied any wrongdoing, but it soon became clear that it had tried to cover
up the burglary and connections to it, connections that might even include the president.
Under congressional and public pressure, Nixon appointed a special prosecutor. When it
was learned that the president had secretly taped conversations in the Oval Office, the
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25. prosecutor filed a subpoena to secure tapes he believed relevant to the criminal
investigation. In March 1974, a federal grand jury indicted seven associates of President
Nixon for conspiracy to obstruct justice and other offenses relating to the Watergate
burglary. The president himself was named as an unindicted co-conspirator. The District
Court, upon the motion of the special prosecutor, issued a subpoena to the president
requiring him to produce certain tapes and documents relating to precisely identified
meetings between the president and others. Although President Nixon released edited
transcripts of some of the subpoenaed conversations, his counsel filed a "special
appearance" and moved to quash the subpoena on the grounds of executive privilege.
When the District Court denied the motion, the president appealed and the case was
quickly brought to the Supreme Court. In the following portion of the Court's unanimous
opinion, the Supreme Court dealt with two key issues, the power of the judiciary as the
ultimate arbiter of the Constitution, and the claim of the president that, in the name of
executive privilege, he could choose to withhold materials germane to a criminal
investigation. Chief Justice Burger reaffirmed the rulings of Marbury v. Madison and
Cooper v. Aaron that under the Constitution the courts have the final voice in
determining constitutional questions, and that no person, not even the president of the
United States, is above the law. Although there had been some speculation as to whether
Nixon would obey the Court, within eight hours after the decision had been handed down
the White House announced it would comply. On August 5, 1974, transcripts of sixty-
four tape recordings were released, including one that was particularly damaging in
regard to White House involvement in the Watergate cover-up. Three days later, his
support in Congress almost completely gone, Nixon announced that he would resign.
http://law.jrank.org/pages/6933/Fletcher-v-Peck.html
http://eca.state.gov/education/engteaching/pubs/AmLnC/br9.htm
http://usinfo.org/zhtw/DOCS/basic_reading/72.html
http://usinfo.org/docs/democracy/48.htm
http://www.oyez.org/cases/
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