CNP POS 2041

“ The Will of the People: The Supreme Law” WELCOME TO POS 2041: U.S. GOVERNMENT J. David Granger M.P.A. PhD/ABD [email_address]

Notes and Study Packet for POS 2041: United States Government This is the study and notes packet for the POS 2041 class. This packet was designed as a supplemental aid in conjunction with the text and other materials that the instructor may give you. Contents Module 1: Foundations and Institutions of U.S. Government Section 1A: Philosophical foundations of U.S. Government Section 1B: The Constitution: Formation Section 1C: Article I: Legislature Section 1D: Article II: Presidency Section 1E: Articles IV - VI Section 1C: Federalism Module 2: Civil Liberties and Civil Rights Section 1A: Article III: Judiciary Section 2B: Amendment XIV: Due Process and Incorporation Section 2C: First Amendment

Notes and Study Packet for POS 2041: United States Government Section 2D: Fourth Amendment Section 2E: Fifth Amendment Section 2F: Sixth Amendment Section 2G: Ninth Amendment Section 3H: Obscenity (First Amendment) Section 3I: Civil Rights

The Foundations of Government: Political Theory Western ideals of government stem from two dominant philosophical theories: Republicanism and Liberalism Republicanism has a long history. Its origin is Aristotle, and its strongest articulation is probably found in Machiavelli. Republicanism stresses the role of community and society, and other collective endeavors, called “civil society” in contemporary terms. The culturally imbedded moral or “civic virtue” of citizens and leaders is integral to fulfillment of human well being and to the preservation of the collective organization, the nation-state since 1648. Liberalism has a shorter history; its origin is Hobbes, but its best articulation is probably found in Adam Smith. Liberalism emphasizes the individual rather than the collective. The primary mover in liberalism is self interest. The state’s function is to provide the framework and order necessary for individuals to carry out their self interests, i.e. develop and enforce property laws.

The Foundations of Government: Aristotle Aristotle (384 – 322 BC) argued that human beings are political animals. Therefore, political actuation can only truly occur in the polis (city-state). “The city exists for the sake of living well.” Aristotle’s political thought is teleological; the city-state is the natural apex of human organization. “ The function of a man is the exercise of his soul, in accordance with a rational principle.” “The function of a good man is to exert such activity well.” “The best societies and states are therefore rational and moderate ones that foster a collective spirit of mutual cooperation and respect.” This means that individuals must think of themselves as citizens first and actively participate in political life, not just passively obey the law. Aristotle’s political philosophy isn’t exactly startling, but it avoids the utopianism of Plato’s Republic. If infallible experts do not exist, then politics has to be something rather more pragmatic. Aristotle’s influence can be seen in contemporary theories of government that emphasize “civil society.” Moral “civic virtue” is culturally imbedded; therefore, its inculcation through education is necessary.

The Foundations of Government: Political Theory - Machiavelli Niccolo Machiavelli (1469-1527) was a Florentine diplomat who did something unusual – he described the behavior of politicians and wrote about politics as it is rather than prescribing what it should be. Historically, The Prince has earned Machiavelli much disrepute for what is often taken to be the avocation of treachery and opportunism. To believe that is, however, to misunderstand Machiavelli’s true intentions. Machiavelli also wrote a book called The Discourses , which discusses the role of citizens and not just rulers. What Machiavelli did was to reincorporate Aristotle with pragmatism and without teleology. The basic premise of The Prince and The Discourses involves laying out what is necessary for the preservation of the republic. The preservation of the state imparts different characteristics and actions for leaders and citizens. A leader who wants to preserve his state had best be prepared to do whatever is necessary - even if it involves the abandonment of religious ethics. A good example in The Prince involves the use of an “economy of violence.” Violence is wrong in itself, but a measured use of it is necessary if the republic is threatened. A republic is sustained through the characteristics and actions of its citizens. Civic virtue is very important to the preservation of the republic. Thus, a republic cannot afford for its citizens to be strongly autonomous. Citizens must have a sense of allegiance to the republic or it will not be sustained. “The good man is identified with the citizen, with the result that his goodness, rather than being purely individual, depends crucially on that of others.”

The Foundations of Government- Hobbes Hobbes’(1588-1679) argument is profoundly different from preexisting Republican ideals. It is different because his argument is based on the assumption that humans are inherently anti-social. In the state of nature, life was “solitary, poor, nasty, brutish, and short.” “Individuals will act quite rationally in order to produce a situation that none of them wants.” The way out of the state of nature was for people to form a contract between themselves and a sovereign. The sovereign provides a modicum of security for the people. This sovereign cannot be removed unless he violates “the natural right of self preservation.” Hobbes contract theory is significant because it departs from Republican ideals. However, it has inherent problems in that does not account for altruism and generosity. Furthermore, Hobbes assumes that individuals go directly from the state of nature to the political state without recourse to an intermediate state such as civil society.

John Locke (1632-1704) was an important source of ideas for the burgeoning U.S. government. In essence, Locke’s ideals represent a much softened version of Hobbes. Like Hobbes, Locke envisions a state of nature, but this state is more benign in that individuals are conscientious of their actions towards others. In Locke’s theory the role of property becomes paramount. According to Locke, all own property by virtue of their labor. But what Locke wants to emphasize is that the institution of property existed long before any kind of political state came into being. Property ownership gives individuals inviolable rights and freedom from state interference. Government in Locke’s ideal is minimal. The state exists to ensure that there are systematic rules governing the transference of property and not to redistribute wealth or maintain public welfare. Locke realized that the idea of everyone consenting to be ruled by governments was problematic. He agrees that the consent of most people is merely tacit – citizens are deemed to have agreed to obey the state because they do not emigrate or because they benefit from what it provides. The Foundations of Government: Locke

Module 1C: Formation of the U.S. Government and the Constitution Objectives: Understand the underlying pre-revolutionary foundations of the United States Understand what the Articles of Confederation represented and why they failed Understand the development of the 1789 Constitution 4. Cover Articles I, II, III, IV, V, and VI of the U.S. Constitution

Formation of the U.S. Government and the Constitution Tudor (16 th century Political Ideals) 1. Supremacy of state over church 2. Organic union of society and government 3. Harmonization of authority within government 4. The subordination of government to fundamental law 5. The intermingling of legal and political realms 6. The balance of powers between Crown and Parliament 7. The vitality of local governmental authorities 8. Reliance on the militia for defense

Formation of the U.S. Government and the Constitution Civic classes taught us that the post-colonial government was a essentially an experiment without precedent. However, in reality, the post-colonial government that would form the United States was already well institutionalized. The Articles of Confederation and the 1789 Constitution were essentially modifications to a preexisting “Tudor” political system. All of the English colonies had legislative bodies, called by various names, in which representative officials were elected. Suffrage was limited by property qualifications, but most colonists were not landless peasants. The literacy rate of the English colonists was fairly high and the press was highly developed and accessible. Thus, most colonists were reasonably informed. Note that the success of the ratification of the 1789 Constitution was accomplished largely through the dissemination of political pamphlets. Samuel Huntington (1968) makes the argument that the U.S. governmental system is an anomaly; hence, its odd position in comparison with European democracies today. Huntington argues that the U.S. government was essentially modeled on the Tudor ideals of 16 th century Europe. English colonists carried 16 th century ideals of government beginning with their arrival in the 1630s. From c.a.1630 to c.a. 1754, the English interfered relatively benignly in their American colonies. Thus, the colonists preserved a system that was essentially medieval.

Huntington argues that the colonial era government was essentially medieval: reflecting the Tudor institutions of 16 th century England. This was the political system of England and some of the continental European countries prior to the development of the nation-state (1648) and the concept of sovereignty. The Tudor political system did not have a locus of sovereignty; instead, authority was essentially divided among different political institutions: parliament, monarch, common law, courts, custom, church and people (Huntington 1968, 100). “Society and government, Crown and people, existed in a harmony in a “single body politic”(100). Political modernization in the West begins in the 17 th century in England with the centralization of authority and the location of sovereignty within the nation-state. Natural law, manifested in English common law, was deemed to exist as a discoverable, external authority whose purpose was to impose restraint on human action. “Law is the true sovereign, and they are not under the necessity of considering whether King or Lords, or Commons or all three together are the ultimate authority in the state” (Figgis 1922, 230). In continental Europe, the “divine right of kings” established sovereignty in the monarch. In England, sovereignty was established in the Parliament through Parliament’s victory over the Crown in the English Civil Wars of the 17 th century. Formation of the U.S. Government and the Constitution Tudor Political Ideals

Formation of the U.S. Government and the Constitution The Constitution codifies colonial political institutions that were based on Tudor ideals of government. For example, 16 th century English parliamentarians were representatives of their local constituencies making the Parliament a plural institution. The monarch embodied the whole of the country, but was not the locus of authority. The English Civil Wars effectively ended the affective representative functions of the monarch. Parliamentarians became representatives of the country rather than their constituencies. These changes never occurred in the United States; the Constitution has not been amended in order to have a sort of “congressional sovereignty.” The President, as explicitly stated in the Jackson and T. Roosevelt administrations, represents the nation as a whole. In the English Parliamentary system, the loyalty of MPs belong to the party; whereas, in the U.S. the loyalty of Congresspersons (Senators and Representatives) is to their constituencies and special interests. Tudor ideals are also found in the sharing of powers (functions) between U.S. political institutions. The idea of separation of powers in U.S. political institutions is a misnomer. The institutions are differentiated but their functions are definitely shared (See Neustadt 1960, 33). Thus, the three institutions of U.S. government – Congress, the President, and the Judiciary - have both legislative and judicial-legal functions. For example, the Congress has both impeachment and trial and lawmaking functions. Likewise, the use of judicial review by U.S. courts is essentially a lawmaking rather than a purely interpretative function.

Huntington’s most significant argument, made in Political Order in Changing Societies (1968), is that political modernization, electoral democracy, creates political instability. Essentially, countries that do not have institutionalized democratic institutions will experience political instability as a result of an increase in political participation. Huntington argues that “America was the first to achieve widespread political participation but the last to modernize their political structures” (122). “Why did this early and rapid expansion of political participation fail to breed violence and instability in the United States?” (128). The diversity of political institutions and the sharing of functions among political institutions, at both the state and federal levels, provided multiple avenues for political participation. “In Europe the expansion of participation was linked to the centralization of power” (129). “[T]he democratic movement had to be unitary and centralizing, because it had to destroy before it could construct” (Palmer 1959, 350). Hence, the occurrence of “social revolutions” in a country like France (1789). The extension of Huntington’s argument to contemporary history is that non-western countries cannot have both political modernization and democratic pluralism. The centralization of authority, accumulation and concentration of power, not its dispersion, manifested in Leninist, one party systems is what is needed in non-western countries. And, this indeed was the pattern for most non-western countries from 1945 to 2000. Formation of the U.S. Government and the Constitution

Formation of the U.S. Government and the Constitution Colonial leaders constructed a contract called the Articles of Confederation (hereafter referred to as The Articles) during the Revolution. The Articles were based on the idea of a confederacy of states with a weak central government. The federal or central government had virtually no power, especially lacking was a means to effectively collect revenue by taxation. Instead, contributions had to be essentially solicited from the states. Without taxation the central government, after the Revolution, could not pay back its debts to other countries nor could it support a navy, which was necessary to protect trade. A standing army was considered pernicious. The newly formed United States suffered a revolt, Shay’s Rebellion (1786-87), from former soldiers and farmers angry over Massachusett’s failure to relieve crushing debt and hyperinflation caused largely by the printing of worthless paper money. In 1787 representatives gathered to discuss the possibility of modifying The Articles in order to increase the federal government’s commerce powers. In 1789 they met in Philadelphia to discuss the modification. However, by the end of the summer, they had decided to construct a Constitution based on a substantially stronger central government. Agreeing on the necessity of a stronger central government was difficult, but ratification by the states would be even more difficult. In fact, some states did not ratify the Constitution for decades. The ultimate question of power between the states and the central government (pluralism vs. political modernization) would be settled by bloodshed during the American Civil War of 1861-1864. [Read The Federalist Papers #15, #21, #22, #23 for Federalist arguments concerning the failure of The Articles ]

Formation of the U.S. Government and the Constitution: The Articles of Confederation Establishes the name of the confederation as the United States of America. Asserts the precedence of the separate states over the confederation government, i.e. "Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated." Allocates one vote in the Congress of the Confederation (United States in Congress Assembled) to each state, which was entitled to a delegation of between two and seven members. Members of Congress were appointed by state legislatures; individuals could not serve more than three out of any six years. Expenditures by the United States will be paid by funds raised by state legislatures, and apportioned to the states based on the real property values of each. (The federal government lacked any power of taxation.) Defines the powers of the central government: to declare war, to set weights and measures (including coins), and for Congress to serve as a final court for disputes between states.

Formation of the U.S. Government and the Constitution The Constitution was opposed by both the public and most states. Anti-Federalists opposed the Constitution on various grounds that it promulgated an inevitable monarchy via the presidency and that it violated individual and states’ rights by centralization of authority. The Federalists, supported the Constitution largely on the grounds that it would provide a stronger central government capable of promoting economic modernization (international trade) via legislative control of interstate commerce. The Federalist Papers , written by James Madison, John Jay, and Alexander Hamilton, is a collection of 85 essays arguing the need for the Constitution. The Federalist Papers remains the primary source for the interpretation of the Constitution, having been cited in 289 Supreme Court opinions. According to historian Richard Morris they are an "incomparable exposition of the Constitution, a classic in political science unsurpassed in both breadth and depth by the product of any later American writer" (1987, 309). James Madison (1821), on the other hand, stated The Federalist Papers should not be held as a direct expression of the ideas of the Founders and that the “debates and incidental decisions of the Convention should not be viewed as having any authoritative character.” Some of the most cited essays are Federalist # 10, #51, #67, and #78. Federalist #10 outlines the problems of democracy in a large republic. Federalist #51 makes the argument for separation of functions. Federalist #67 provides support for a presidency. Federalist #78 makes argument for judicial review.

Formation of the U.S. Government and the Constitution: Federalist #51 Separation of Powers (Functions): Structural Checks and Balances Federalist #51 delineates how the “separation of powers” (functions) can make liberty possible. The political institutions, Congress, Executive, and Judiciary, should have autonomy in the appointment of their officials. The ideal would be that the people elect all political officials. However, the judiciary is not well suited for elections given that the people are not well informed of the qualifications of potential judges. Judges also need to be free of political pressure, hence, their lifetime tenure. There is a natural tendency for power to concentrate in a political institution via the ambitions of leaders within it. Madison thought the legislature was most prone to this, hence, the bicameral division. We may not like to admit that men abuse power, but the very need for government itself proves they do “ [I]f men were angels, no government would be necessary." Unfortunately, all men are imperfect, the rulers and the ruled. Consequently, the great problem in framing a government is that the government must be able to control the people, but equally important, must be forced to control itself. The dependence of the government on the will of the people is undoubtedly the best control, but experience teaches that other controls are necessary.” Ironically, Baron Montesquieu completely misunderstood the English Parliamentary system. As stated by Lehman (1992, 58), “The great strength of the British system lay in the centralizing of all three functions , as Hobbes had admonished, under one supreme authority where “the supreme determining power is all points the same.”

The underlying philosophical idea in Federalist #51 is that both institutional and sociological plurality can provide a kind of “checks and balances” against concentration of power within one institution or abuse by the majority. Institutional plurality is found in the multiplicity of electoral offices at different levels of government. And, sociological plurality is found in the multiplicity of interests. “While all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests and classes of citizens that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority.” Justice Brandeis’ dissenting opinion in Myer v. U.S . (1920) states, “The doctrine of the separation of powers was adopted by the Convention of 1789 not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was not to avoid friction, but by means of inevitable friction incident to the distribution of government powers among the three departments, save the people from autocracy.” Federalist #51, like Federalist #10 , reflects Madison’s fears of “tyranny of the majority”: that a political or popular majority would by nature abuse political minorities. Madison, also notes that “larger” societies would support the Republican form of government due to an inherent plurality of interests. (See the chart “Checks and Balances”, p. 29 in Wilson.) Ironically, Madison, along with Jefferson, is a founding father of party politics in the U.S. Madison and Jefferson formed the Democratic-Republican Party in the early 1790s in order to counter the Federalists, whom were led by George Washington and Alexander Hamilton. Formation of the U.S. Government and the Constitution: Federalist #51 Separation of Powers (Functions): Structural Checks and Balances

Formation of the U.S. Government and the Constitution: Article I - Legislature The U.S. Legislature, Congress, was not meant to emulate the English Parliament. Parliaments are party based; whereas, a Congress is constituent based. Sovereignty, concentration of authority, was not to be based in one institution; instead, it was to be diffused and decentralized to the people via the House and to the states via the Senate. The Senate provides equal representation of states. Individual legislators in a congressional system are essentially more independent than members of Parliament (MPs). This begins with the electoral process. In a parliamentary system, a candidate must persuade his political party to put her on a ballot list. Wilson (2008, 118) states, “In the election voters in the district choose not between two or three personalities running for office, but between two or three national parties.” A “government” in a parliamentary system consists of the Prime minister and her cabinet. The majority party selects the Prime Minister and cabinet. The Prime minister remains in office until removed by a “vote of no confidence” by her party. MPs have little connection to their constituency and serve primarily to debate national issues. “The principle work of a congress is representation and action, most of which takes place in committee” (119). Ironically, action is not a characteristic of the U.S. Congress as the need to please interests and constituents for funds and votes often creates indecisiveness and delay.

The powers provided in Article I, section 8 are the enumerated powers of Congress. These enumerated powers are quite limited in number and scope if applied literally. However, the Supreme Court, beginning with the case of McCulloch v. Maryland (1819), interpreted the existence of implied powers. The Supreme Court’s decision in McCulloch was that the formation of a central bank was constitutional as an implied power derived from the enumerated power of Congress to regulate interstate commerce. Over time, the Commerce Clause of section 8, would become the most significant clause in interpreting implied congressional powers. From 1890 to 1937, called the Lochner Era , a conservative Court consistently upheld individual “contract” rights, under the Due Process Clause of the Fifth Amendment, contra both state and federal regulation of labor. During the Lochner Era , the Court refused to expand the use of the Commerce Clause to allow Congress an implied power to regulate labor. However, after World War II, the Court interpreted an expansive use of the Commerce Clause for implied powers to mitigate racial discrimination during the Civil Rights movement of the 1960s. In Katzenbach v McClung (1964) and Heart of Atlanta Motel, Inc. v. U.S. (1964), the Court found that the 1964 Civil Rights Act’s prohibition against discrimination in places of public accommodation was constitutional as an implied power of Congressional regulation of interstate commerce. But, in the 1990s, a conservative Court returned to limited interpretation of the reach of the Commerce Clause. In U.S. v. Lopez (1995), the Court found that a federal law prohibiting possession of handguns within a school zone was unconstitutional. Similarly, in U.S. v. Morrison (2000), the Court found the Violence Against Women Act to be unconstitutional because violence against women could not be shown to have a substantial enough effect on interstate commerce. Formation of the U.S. Government and the Constitution

Section 2: House Requirements 1. 25 years of age, 7 years citizenship 3. Two year terms 4. Apportionment by population 5. Impeachment Section 3: Senate Requirements 1. 30 years of age, 9 years citizenship 2. Six year terms 3. Two senators from each state 4. Vice President is President of the Senate 5. Impeachment trial conducted by Senate Section 8: Enumerated Powers 1. Taxation 2. Interstate Commerce 3. Immigration 4. Bankruptcy 5. Postal Service 6. Print Money 7. Tribunals 8. Declare War 9. Navy and Army 10. “Necessary and Proper” Clause Section 7: Bills and Resolutions 1. Revenue Bills originate in House 2. Bills must pass House and Senate Section 9: Restrictions 1. Writ of Habeas Corpus 2. No Bill of Attainder or Ex Post Facto Laws 3. No direct taxation 4. No export taxes 5. Prohibition of Titling Section 10: Restrictions on State Powers 1. States cannot make treaties and declare wars, etc. Article I: Congressional Requirements and Powers

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; To borrow Money on the credit of the United States; To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States; To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures; To provide for the Punishment of counterfeiting the Securities and current Coin of the United States; To establish Post Offices and post Roads; To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations; Enumerated Powers Granted to Congress: Article I, Section. 8.

Enumerated Powers Granted to Congress Article I, Section. 8. To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; To constitute Tribunals inferior to the supreme Court; To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and support Armies, but no Appropriation of Money to that Use shall be for longer Term than two Years; To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

Enumerated Powers Granted to Congress: Article I, Section. 8. To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress; To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;--And To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Congress: Commerce Clause McCulloch v Maryland 17 U.S. 316 (1819) Facts: Congress established a central bank in 1816 much to the chagrin of the states who opposed the expansion of federal powers. Maryland attempted to tax a branch of the central bank. James McCulloch, the administrator of the bank refused to pay the tax. Question: What, if any, authority did Congress have to establish a central bank? 2. Can a state tax a federal entity in this manner? Findings: Congress has the authority to establish a central bank through its powers of interstate commerce. The power to establish a central bank is an implied power that stems from the power to regulate interstate commerce. No, a state cannot tax a federal entity. Chief Justice John Marshall stated, “The power to tax is the power to destroy.” See Gibbons v. Ogden (1824). In Gibbons the Court interpreted the use of broad, “plenary”, congressional powers under the Commerce Clause. The Commerce Clause implies the power to regulate interstate navigation on rivers even when the action occurs within the state. See also U.S. v. Gettysburg Electric Railway Co. (1896).

Congress: Commerce Clause Facts: In 1890, Congress passed the Sherman Anti-trust Act in order to control the formation of monopolies. It outlawed "every contract, combination...or conspiracy, in restraint of trade" or interstate commerce, and it declared every attempt to monopolize any part of trade or commerce to be illegal. The E.C. Knight Company was a monopoly controlling over 98 percent of the sugar-refining business in the United States. U.S. v. E.C. Knight Co. 156 U.S. 1 (1895) Question: Is the Sherman Anti-Trust Act a legitimate constitutional use of the commerce clause power? Finding: Yes. The Sherman Anti-Trust Act is constitutional, but the congressional power to regulate interstate commerce does not extend to manufacturing. The Knight case is a good example of the formal or “categorical” interpretation of the Commerce Clause. The categorical interpretation looks at whether the activity is “local or interstate”, “inside or outside the stream of commerce”, or whether the effects of the activity are “direct or indirect.” The opposite interpretive approach, called “empirical” interpretation, focuses on the magnitude of the effect on interstate commerce. See Houston E & W Railroad Co. v. U.S. ( Shreveport Case ) (1914). In Shreveport , the Court upheld a federal agency's regulation of freight rates on travel completely within Texas because freight transportation within Texas was found to be substantially affecting interstate commerce.

Congress: Commerce Clause Lochner v. New York 198 U.S. 45 (1905) Facts: The state of New York passed the Bakeshop Act of 1896 restricting the working hours of bakers to sixty hours a week or ten hours a day. Lochner was fined twice for overworking employees Question: Does the New York law violate the Fourteenth Amendment right of due process and right to contract between employees and employers? Finding: Yes. The New York state regulation of working hours was unconstitutional: not a legitimate exercise of state police power, as it violated the right of contract, Due Process, within the Fourteenth Amendment.

Congress: Commerce Clause Adkins v. Children’s Hospital 261 U.S. 525 (1923) Facts: Congress passed a law providing a minimum wage for women employees working in he District of Columbia. Female employees of the Children’s Hospital earned less than the $16.50 per week requirement. The Hospital sued the D.C. Minimum Wage Board in order to prevent the enforcement of the law. The option for the Hospital would have been to fire workers. Question: Does the federal law violate the Fifth Amendment right of due process and right to contract between employees and employers? Finding: Yes. The Congressional law providing a minimum wage for women in the District of Columbia was unconstitutional, The Court stated that the law would “dangerously extend the policy powers of the state.” And, that the law was vague, amounted to price fixing, and had discrepancies in terms of varying minimum wages for different types of jobs. This case is similar to Lochner in that the Court found that law violated the Fifth Amendment Substantive Due Process right to contract between employees and employers.

Congress: Commerce Clause Hammer v. Dagenhart 247 U.S. 251 (1918) Facts: Congress passed the 1916 Keating-Owen Act prohibiting the interstate commerce of goods produced by children under the age of fourteen or where children between the ages of fourteen or sixteen worked more than eight hours daily. There was much public sentiment to regulate child labor, but state regulations were not forthcoming as some states argued it would make them uncompetitive with states that allowed child labor. Ruben Dagenhart sued on behalf of his fourteen year old son arguing that such a Congressional law violated his son’s due process and contract rights under the Fifth Amendment. Question: Does the law violate the Commerce Clause and the Tenth and Fifth Amendments? Finding: Yes. Regulation of manufacturing, not interpreted as interstate commerce, is a right relegated to the states under the Tenth Amendment. Child labor did not meet a moral standard, an ”inherent evil”, as interpreted to exist in previous cases involving the regulation of prostitution ( Hoke v. U.S .) and lotteries, ( Champion v. Ames ). Justice Holmes dissented arguing that the Court had essentially upheld a problematic moral relativism, and all forms of manufacturing were clearly within the purview of Congress to regulate under the interstate commerce power. This case was overturned in U.S. v Darby Lumber (1941).

Congress: Implied Powers and the Commerce Clause Schechter Poultry Corp. v. U.S. 295 U.S. 495 (1935) Facts: During the Depression, Congress delegated powers to the President to approve “codes” written by private industrial organizations. These codes regulated wages, prices, and collective bargaining in various industries. The Schechter Poultry Corp. was indicted on 60 counts of violating the Live Poultry Code by noncompliance with wage regulations and by selling diseased chickens. Question: Does the approval of the codes by the President, allowed under the National Industrial Recovery Act (NIRA) constitute an unconstitutional delegation of power? Finding: Yes. The Court found this to be an unconstitutional delegation of power. The Schechter Poultry Company was not engaged in interstate commerce as they sold chicken only within the state of New York. The codes were regulating businesses like the Schechter’s that were operating in intrastate commerce only. The Court held that Section 3 of NIRA was "without precedent" and violated the Constitution. The law did not establish rules or standards to evaluate industrial activity. In other words, it did not make codes, but simply empowered the President to do so. A unanimous Court found this to be an unconstitutional delegation of legislative authority. Schechter is referred to as the “Sick Chicken” case.

Congress: Commerce Clause NLRB v. Jones and Laughlin Steel Co. 301 U.S. 1 (1937) Facts: Jones and Laughlin Steel Co. fired workers who attempted to unionize. The National Labor Relations Board (NLRB), under the Wagner Act, ordered that the company rehire and provide backpay for the fired workers. However, the company refused in light of the Court’s previous decisions against President Roosevelt’s New Deal legislation. Question: Is the Wagner Act, which allows labor to be regulated under the interstate commerce power, constitutional? Finding: Yes. The Wagner Act is constructed narrowly enough to allow the regulation of labor under the interstate commerce clause. The Court found that labor had a direct effect, verses the indirect effect found in previous cases dealing with New Deal legislation, on interstate commerce. See also U.S. v Carolene Products Co . (1938). In Carolene , the Court upheld a 1923 law banning the interstate shipment of filled milk. However, it is the famous “footnote 4,” which developed the “strict scrutiny” and “rational basis” standards. Legislation affecting “discrete and insular minorities” is to be examined more closely than economic legislation. Government must provide a compelling interest and legislation can only be narrowly applied. Ironically, this strict scrutiny standard was first applied in Korematsu v. U.S . (1944).

Congress: Commerce Clause U.S. v. Darby 312 U.S. 100 (1941) Facts: The Darby Lumber Co. violated the 1938 Fair Labor Standards Act (FLSA) by paying below the minimum wage and working employees more than 60 hrs. weekly. An appellate court upheld the ruling set in the Dagenhart case: that this was essentially production and thus not subject to congressional control under the Commerce Clause. Question: Was the FLSA a legitimate exercise of congressional power to regulate interstate commerce? Finding: Yes. The FLSA is a legitimate exercise of congressional power under the Commerce Clause. The regulation of labor, when it involves interstate commerce, does not violate the Fifth and Tenth Amendments. The Court’s unanimous decision affirmed its right to “exercise to its utmost extent” the powers reserved to it under the Commerce Clause.

Congress: Commerce Clause During the 1930s, a recalcitrant Supreme Court consistently struck down legislation proposed by President Roosevelt. President Roosevelt’s initiatives for economic recovery during the Great Depression are called the “New Deal.” The Court’s conservative jurisprudence strongly favored individual “right of contract” finding that Congress had exceeded its powers under the Commerce Clause and that states had violated the Fourteenth Amendment. See Lochner v. New York (1905) and Hammer v. Dagenhart (1925). President Roosevelt and the Court literally came to blows culminating in a bill, proposed by President Roosevelt, called the Judiciary Reorganization Act or “Court Packing Law”. This law would have allowed the President to appoint a new justice for every justice over the age of seventy, which have resulted in an additional six justices being appointed. The appointment of Justices by President Roosevelt would have allowed him to control the Court mitigating the dogged resistance of the conservative, “Four Horsemen” wing of the Court and conservative Democrats who controlled the House. Justice Owen Roberts swung the vote in the 1937 case of West Coast Hotel v. Parrish , which involved the constitutionality of a Washington State minimum wage law. West Coast Hotel is called the “Stitch in Time that Saved Nine.” Shortly after the case, Justice Van Devanter resigned and the Court shifted in favor of President Roosevelt allowing several favorable interpretations of the Commerce Clause (See NLRB v. Jones & Laughlin Steel Co . 1937, Steward Machine Co. v. Davis 1937, and U.S. v. Darby 1941).

Congress: Commerce Clause – Time Line of New Deal Legislation 1935 Jan 7: Panama Refining Co. v. Ryan (1935) Held, 8-1: National Industrial Recovery Act Sect. 9(c) unconstitutional 1935 May 6: Railroad Retirement Bd. v. Alton R. Co. (1935) Held, 5-4: Railroad Retirement Act unconstitutional 1935 May 27: Schechter Poultry Corp. v. United States (1935) Held, 9-0: National Industrial Recovery Act unconstitutional 1936 Jan 6: United States v. Butler (1936) Held, 9-0: Agricultural Adjustment Act unconstitutional 1936 May 18: Carter v. Carter Coal Company (1936) Held, 6-3: Bituminous Coal Conservation Act of 1935 unconstitutional 1937 Feb 5: Conference Committee vote on West Coast Hotel 1937 Feb 5: Judiciary Reorganization Bill of 1937 ("JRB37") announced. 1937 Mar 29: West Coast Hotel Co. v. Parrish (1937) Held, 5-4: State of WA minimum wage law constitutional 1937 Apr 12: NLRB v. Jones & Laughlin Steel Corp. (1937) Held, 5-4: NLRA constitutional 1937 May 24: Steward Machine Company v. Davis (1937) Held, 5-4: Social Security tax constitutional 1937 Jun 2: "Horseman“ Willis Van Devanter resigns, Sen. Hugo Black appointed 1937 Jul 22: JRB37 referred back to committee by a vote of 70-20 to strip "court packing" provisions. 1938 Jan 18: "Horseman“ George Sutherland resigns, Stanley Forman Reed appointed

Congress: Commerce Clause Facts: The 1964 Civil Rights Act banned discrimination in places of public accommodation. The Heart of Atlanta Motel refused to rent rooms to black patrons violating the Act. The owner of the motel filed a civil suit arguing that the Act exceeded the authority given to Congress to regulate interstate commerce. The motel owner also argued that the Act violated his Fifth due process right and forced him into a condition of involuntary servitude, violating his Thirteenth Amendment right, by not allowing him to choose his customers. Question: Did Congress exceed its interstate commerce power by regulating local incidents of commerce and by depriving owners of their right to choose customers? Heart of Atlanta Motel Inc. v. U.S. 379 U.S. 241 (1964) Finding: No. The Court upheld Title II of the Civil Rights Act as constitutional on the grounds that Congress could regulate local incidents of commerce that had a significant effect on interstate commerce. Having observed that 75 percent of the Heart of Atlanta Motel's clientele came from out-of-state, and that it was located near two interstate highways, the Court found that the business clearly affected interstate commerce. The Court, therefore, upheld the permanent injunction issued by the District Court, and required the Heart of Atlanta Motel to receive business from clientele of all races. See also Katzenbach v. McClung (1964), concerning discrimination in restaurants.

Congress: Commerce Clause Garcia v. San Antonio Metropolitan Transit Authority 469 U.S. 528 (1985) Facts: The Fair Labor Standards Act FLSA (1938) initially did not allow the federal government to regulate the wages and hours of employees working for state and local governments, The Court in 1976 in National League of Cities found that only “traditional government functions” could be regulated via the Commerce Clause. The San Antonio Metropolitan Transit Authority (SAMTA) then refused to pay its workers overtime pay. In 1979 The Labor Dept. decided that SAMTA was not a traditional government function and thus subject to the FSLA. SAMTA then filed suit arguing that public transit was a traditional government function. Question: Are state and local government functions beyond the power of Congress to regulate under the Commerce Clause? Finding: No. The Court rejected the theoretical underpinnings of the National League of Cities decision—that the Constitution's recognition of the sovereignty of the states necessarily implies limits on the power of the federal government to regulate employment. The Commerce Clause invalidates state regulations that interfere with commerce, while the Supremacy Clause allows Congress to preempt state laws that conflict with federal law in this area. According to the majority, the Framers believed that state sovereignty could be maintained by the peculiar structure they adopted: a Senate in which each state was given equal representation, regardless of its population, an electoral college that gave the states the power to choose electors, and the indirect election of Senators by the legislature of each state prior to the adoption of the Seventeenth Amendment, which provided for popular election of Senators.

Congress: Commerce Clause Facts: Antonio Lopez, a student, carried a handgun and ammunition into a San Antonio High School. Lopez was initially charged under state law for a firearms violation, but was then charged under the 1990 Gun Free School Zones Act, a federal law. The act forbids "any individual knowingly to possess a firearm at a place that [he] knows...is a school zone." Lopez was found guilty following a bench trial and sentenced to six months' imprisonment and two years' supervised release. Question: Is the Act a legitimate exercise of congressional power under the Commerce Clause? Finding: No. The Court found that possession of firearms in school zones does not have a substantial connection to interstate commerce. This case reverses the precedent, set since the late 1930s, allowing extensive use of congressional power via the Commerce Clause. See also U.S. v. Morrison (2000) in which the Court held that the Violence Against Women Act exceeded congressional power under the Commerce Clause. The protection against violence against women is not economic. Lopez and Morrison uphold what is called the “Empirical” or “Substantial Effects” theory of interstate commerce as contrasted with the “Direct and Indirect” or “Local or National” theory. U.S. v. Lopez 514 U.S. 549 (1995) C. Brzonkala

Gonzalez v. Raich 545 U.S. 1 (2005) Facts: In 1996, California passed Proposition 215 (The Compassionate Use Act), legalizing the medical use of marijuana. Angel Raich used marijuana grown by Diane Monson, which was legal under the California law but illegal under the Controlled Substances Act (CSA). The DEA raided Monson’s home and destroyed the plants. Raich and Monson sued arguing that the enforcement of the CSA violated their rights under the Commerce Clause, the 5 th , 9 th , and 10 th Amendments. The Ninth Circuit Court ruled, following the precedents of Lopez (1995) and Morrison (2000) that the cultivation and use of marijuana within the state did not affect interstate commerce. Question: Is the enforcement of the CSA, under the Commerce Clause, to regulate the intrastate cultivation and medical use of marijuana an overstretch of congressional power? Finding: No. The Court distinguished their decision from Lopez and Morrison by stating that marijuana cultivation and use was within a class of activities that affected interstate commerce. The cultivation and sale of marijuana within a state always has an affect on the national market for marijuana. Justice Thomas dissented stating, “Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything–and the Federal Government is no longer one of limited and enumerated powers.” Congress: Commerce Clause

Congress: Enforcement Power Katzenbach v. Morgan 384 U.S. 641 (1966) Facts: Section 4e of the Voting Rights Act of 1965 provided that persons who had completed the sixth grade in Puerto Rican schools could not be denied the right to vote by way of literacy tests which required fluency in English. The district court ruled that Congress had exceeded its powers and violated the Tenth Amendment as voting regulations are governed by the states. Question: Can Congress enforce Section 4e of the Voting Rights Act through Section 5 of the Equal Protection Clause of the Fourteenth Amendment? Finding: Yes. Essentially, the Court used Section 5 of the Fourteenth Amendment like the Necessary and Proper Clause of Article I Section 8. “Section 5 of the Fourteenth Amendment is a positive grant of legislative power authorizing Congress to exercise its discretion in determining the need for and nature of legislation to secure Fourteenth Amendment guarantees. The test of McCulloch v. Maryland (1809) is to be applied to determine whether a congressional enactment is "appropriate legislation" under Section 5 of the Fourteenth Amendment” The Court came to a different conclusion in City of Boerne v. Flores (1997) when it ruled that Congress had exceeded its power in trying to enforce, through Section 5 of the Fourteenth Amendment, the 1993 Religious Freedom Restoration Act (RFRA).

Congress: Regulatory Taxation Bailey v. Drexel Furniture Corp . 259 U.S. 20 (1924 ) Facts: After the Court’s decision in Hammer v. Dagenhart (1918), Congress passed the Child Labor Tax Law, which imposed a federal tax on employers employing children under the age of fourteen. Drexel Co. was assessed a tax, at about ten percent of net profits, for employment of children in 1919. Question: Is this a legitimate exercise of congressional taxation power under Article I, section 8 of the Constitution? Finding: No. The Court’s interpretation is essentially the same as Dagenhart only this time applied to federal taxation. “The analogy of the Dagenhart Case is clear.. When Congress threatened to stop interstate commerce in ordinary and necessary commodities, unobjectionable as subjects of transportation, and to deny the same to the people of a state in order to coerce them into compliance with Congress' regulation of state concerns, the court said this was not in fact regulation of interstate commerce, but rather that of state concerns and was invalid. So here the so-called tax is a penalty to coerce a state to act as Congress wishes them to act in respect of a matter completely the business of the state government under the federal Constitution.... ” The Court reversed its decision on regulatory taxes in 1937 in Steward Machine .

Congress: Spending Power South Dakota v. Dole 438 U.S. 203 (1987 ) Facts: South Dakota allowed persons nineteen and over the right to purchase alcohol not exceeding 3.2 percent. In 1984, Congress enacted 23 U.S.C.158 allowing the Secretary of Transportation to withhold federal highway funds from states in violation. South Dakota was denied five percent of federal highway funds for violating the law. The State of South Dakota then sued the Secretary of Transportation Elizabeth Dole. Question: Does the law exceed the spending powers of Congress under Article I, section 2 and the Twenty First Amendment? Finding: No. “In United States v. Butler (1936) and Steward Machine Co. v. Davis (1937), the Court had addressed issues relating to the spending powers of Congress. Through such cases, it had developed a four-part test to limit the exercise of such power. First, such exercise "must be in pursuit of the general welfare," the latter a phrase directly from the Constitution; and in making this determination, Rehnquist wrote, "courts should defer substantially to the judgment of Congress." Second, if Congress wants to put conditions on the states' receipt of federal funds, it should do so in an unambiguous way that makes the states fully aware of their choices and the consequences. Third, these conditions should be related "to the federal interest in particular national projects or programs." And fourth, of course, the spending regulations could not violate the Constitution.” Justice O’Connor dissented making an argument in favor of states’ rights under the 10 th Amendment. See also Printz v. U.S. (1997).

Congress: Spending Power Sabri v. U.S. 541 U.S. 600 (2004 ) Facts: Basim Sabri, a developer, tried several times to bribe a Minneapolis City Council member and was charged under a federal law, U.S.C. 666. This law allowed federal prosecution for bribery of local officials in municipalities receiving more than $10,000 in federal funds. Question: Can Congress make the bribery of local officials a federal crime even if a direct relationship between the monies dispersed and the bribe generally cannot be established? Finding: Yes. Congress can act to prohibit bribery of organizations that use federal funds. The Spending Clause allows Congress to disperse these funds and the Necessary and Proper Clause of Article I section 8 allows Congress the power to regulate the misuse of funds. The requirement of proving a relationship between the bribe and the funds itself is impractical.

Congress: Investigatory Power Although it is not enumerated in the Constitution, Congress has significant implied investigatory powers which allow it to conduct inquisitions into, and oversight over, executive and judicial branch officials. The House of Commons, in the English Parliament, had investigatory power since the sixteenth century, and the colonial legislatures had this power as well. The first use of the investigatory power in U.S. government was the investigation of the massacre of U.S. troops, under the command of General Arthur St Claire, by Indians in the Northwest Territory. The House Representatives formed an ad-hoc, or select, investigatory committee. The primary area of investigation since the St Claire Investigation of 1792 has been military operations. “Every military operation, with the exception of the Spanish American War of 1898, has been the subject of congressional investigation” (Lehman 1992, 158). One of the most infamous was the 1861 Joint Committee on the Conduct of the War created to investigate, “past, present, and future defeats, the orders of the executive departments, the actions of generals in the field, and the questions of war policies.” This committee was set up in the aftermath of the disastrous defeat of the Union Army by the Army of Northern Virginia at the Battle of Bull Run in 1861. Even for Presidents to this day, it remains a political tool for those opposed to the President’s policies, it is considered an impediment for effective action in military operations. Robert E. Lee stated that the information gleamed from the Committee “was ultimately worth about two divisions of Confederate troops” ( Congressional Quarterly 1971, 251).

Congress: Investigatory Power Congressional investigatory power expanded enormously after World War II. The Legislative Reorganization Act of 1946 empowered Congress to vigilantly oversee the administrative agencies of the executive branch. The Act provided for a permanent budget and professional staff. “Compared with approximately five hundred investigations from 1792 to 1946, the Ninetieth Congress of 1946-1947, alone authorized 496 investigations” (1971, 248). The 1970s saw a shift towards Congressional investigation of intelligence matters as a result of the Watergate Scandal, the U.S. defeat in Vietnam, and the CIA assassination of Chilean President Salvador Allende, among others. President Ford tried to counter the strengthening of congressional investigatory powers under the Church and Pike Committees by executive orders requiring the Director of the CIA to report to the president as a de facto cabinet member. Despite the incorporation of most the Church and Pike Committee recommendations by President Ford, Congress strengthened its investigatory powers even more by forming the House and Senate Intelligence Committees. Both of these are standing (permanent) committees with significant powers to review budget appropriations and declassify secret information. Despite the institutionalization of congressional standing committees on intelligence, Presidents, regardless of their political party affiliation, continue to evade them as they find them an impediment to the secret information and actions considered to be an inherent part of the Presidency.

Congress: Investigatory Power An another, highly contentious, example of congressional investigatory power is the “special prosecutor”, a.k.a. “independent” or “special counsel.” The independent counsel was formalized in the Ethics in Government Act of 1978. In 1974, when the Watergate Scandal broke, President Nixon appointed a special prosecutor, Archibald Cox, to investigate. When Cox subpoenaed President Nixon for recordings made in the Oval Office, President Nixon tried to fire Cox. However, the Attorney General resigned before President Nixon could fire Cox. The interim Attorney General, Robert Bork, fired Cox and replaced him with Leon Jaworski whom was promised that he would not be fired. Jaworski then subpoenaed Nixon for the recordings, and Nixon’s refusal led to the Supreme Court ruling, in U.S. v Nixon (1974), that an inherent necessity to guard secrets, would not necessarily preclude congressional investigations, but that the prosecution of federal offenses is still a core executive function. The Ethics in Government Act of 1978 removed the president and attorney general’s power to appoint but not remove special prosecutors. The 1978 Act allowed the Attorney General to conduct a ninety day preliminary investigation of violations of federal law involving members of the executive branch as well as advisors and family members of some high officials. If a violation is found, then the D.C. Court of Appeals appoints an independent counsel. Since 1978, there have been ten independent counsels appointed. In 1979 and 1980, two separate independent counsels investigated accusations of cocaine use by President Carter’s Chief of Staff and Campaign Manager. The most significant of these independent counsel investigations, although not well publicized, involved the Environmental Protection Agency’s (EPA), by order of President Reagan, refusal to turn over documents to a congressional (Dingell) Committee, which resulted in a five year

Congress: Investigatory Power investigation of Assistant Attorney General Theodore Olson. See Morrison v. Olson (1988). A famous investigation was the 1988 Iran Contra Affair in which both congressional committees and a special counsel investigated the illicit sale of weapons, by members of President Reagan’s cabinet and the Defense Department, notably Lt. Colonel Oliver North, to Iran for money used to support Contras in Nicaragua, whom were denied funding under the Boland Amendments. In 1994, Kenneth Starr was appointed to investigate the financial affairs of Hillary Clinton while Clinton was governor of Arkansas. In a few years Starr’s initial investigation into the financial affairs of Hillary Clinton, called Whitewater, multiplied into several investigations including: the death of President Clinton’s personal counsel Vincent Foster, Travelgate, Filegate, and the Monica Lewinski affair. Of these various investigations, the Monica Lewinski affair showed the far-reaching powers of the independent counsel. Ironically, it was President Clinton who had signed the 1992 Law returning significant powers to the independent counsel. The Monica Lewinski investigation commenced following a civil suit filed against President Clinton by former Arkansas state employee Paula Corbin Jones (See Clinton v. Jones 1997). In a deposition concerning the case, President Clinton was asked whether he had sex with Monica Lewinski, a White House aide. This was done initially as part of the civil suit to show Clinton’s character as a womanizer and hence support Jones’ contention that he sexually harassed her. Special Counsel Starr decided that Clinton’s testimony in the Jones deposition was false and opened a new investigation based on a perjury charge. Clinton’s perjury in the Jones civil suit and his initial public denial eventually led to his impeachment by the House, but the Senate acquitted him.

Congress: Electoral – House of Representatives and Senate Surprisingly, the Constitution does not provide much detail concerning the election of representatives and senators. It only notes the qualifications required and a term of two and six years, respectively. The number of representatives per state is based on the population of the state, which is adjusted decennially. Two senators represent each state. Initially, states chose their own means of organizing congressional elections, as the Constitution specifically allows this. Eventually, the standard became the Single-Member Plurality District (SMPD), also called “Winner Takes All” and “First Past the Post.” The SMPD allows one member to represent a district; the winner is the candidate with the largest, but not necessarily a majority, of votes. This is a rare system among democratic countries found primarily in Anglo or former Anglo colonies such as the U.K., Canada, and India. The SMPD has serious malapportionment problems. Larger, more populated, districts may be underrepresented in comparison to smaller, less populated, districts. Thus, votes count more in smaller, less populated, districts. This is also a problem at the state level. See the cases of Baker v. Carr (1962) and Reynolds v. Sims (1964). The SMPD always produces a two party system, called Duverger’s Law. Dahl (2002, 57), in How Democratic is the American Constitution, states, “If voters were to cast their votes in the same proportion in every district, the party with most votes would win every seat. In practice, as the result of variation from district to district in support for candidates, a second party generally manages to gain some seats, although its percentage of seats will generally be smaller than its percentage of votes. But the representation of third parties usually diminishes to the vanishing point.”

Congress: Electoral – House of Representatives and Senate The Framers intention with the Senate is twofold: to provide a aristocratic institution that would check the more democratic House and to provide representation of smaller, less populated, states in Congress. Essentially, the House represents the people, or their districts, and the Senate the states. Initially, Senators were not elected but chosen by their state legislatures. The Seventeenth Amendment (1913) provided for popular election of Senators. There are inherent apportionment problems in the Senate. Dahl 2002, 47), in How Democratic is the American Constitution , argues that the Senate was designed to provide unequal representation; that is, “the representatives of small units cannot be readily outvoted by representatives of larger units.” This reflects the fear of majority tyranny as exemplified by Madison’s Federalist #10 and #51. This produces significant malapportionment. For example, Dahl (2002, 48-50) notes that the vote of a Nevada resident was worth seventeen times the vote of a California resident, and the vote of an Alaska resident was worth fifty-four times the vote of a California resident. The effectiveness of Senate representation is also disparate. In Connecticut, the two Senators represent about 3.4 million people; whereas, in New York, the two Senators represent about 19 million people: a ratio of about 5.6 to 1. The U.S. is at the bottom among bicameral systems in democratic countries, Wyoming to California is a ratio of 70 to 1. Austria’s ratio is 1.5 to 1 and Switzerland’s ratio is 40 to 1. Historically, the power of minority states has been very problematic. The southern states used their “privileged minority” position to block pre-Civil War slavery reforms, end Reconstruction, and block civil rights legislation.

Congress: Electoral – House of Representatives and Senate The essence of providing unequal representation was protection of less populated states, we can call them “geographic minorities,” from majority rule. Dahl (2002) questions whether this is really necessary given that such a conflict is inherent in democracy given that it is a majoritarian system. Dahl notes that the Bill of Rights provides protections, for individuals and minorities other than small states, that could be used to counter significant abuses of majority rule. Amending the Constitution is literally impossible given the requirements in Article V. First, Amendments can only be proposed by two-thirds vote in both the House and Senate or by approval of two-thirds of state legislatures in convention. Then ratification can be given by approval of both the House and Senate or three-fourths of state legislatures. In addition, Article V states, “No state, without its consent, shall be deprived of its equal suffrage in the Senate.” Dahl (2002, 161-162) notes that amendments could be blocked by: Thirty-four senators from the seventeen smallest states with 7.8 percent of the U.S. population. If it passed the Senate, then thirteen state legislatures in the smallest states, 3.9 percent of the U.S population, could block ratification. A law could be passed in the Senate by fifty-one senators from twenty-six states, 18 percent of the U.S. population. Dahl’s solution is that the Senate be abolished. Many western democratic countries have bicameral legislatures. However, in most of these countries, including the English Parliament, the upper house has been abolished or severely weakened.

Congress: Proportional Representation In contrast to the SMD system, seats are not allocated on the basis of a plurality or majority; instead seats are allocated proportionally according to the number of votes received by the party. This system allows for multiple representation in districts. However, proportional representation is not a panacea. It can be complicated and votes can be split in such a way as to ensure that no single party can achieve a plurality or a majority. This can lead to deadlock and instability. For example, Italy has had 58 governments since 1946. In these systems, a party that wins by a slim plurality often has to form a coalition in order to promote cohesion. Another advantage of a proportionally representative system is in countries with deep ethnic and or religious divisions. Some systems, mostly in Latin America, allow for dedicated representation of indigenous minorities. In 1994, Lanie Gunier, a law professor nominated to be the Assistant Attorney General for Civil Rights, lost the nomination on the grounds of her support for a proportional representation system. In a citywide election for five council seats, say, each voter would have five votes, which she could distribute among the five candidates any way she likes. If a fifth of the voters opted to "cumulate," or plump, all their votes for one candidate, they would be able to elect one of the five. Blacks could do this if they chose to, but so could any cohesive group of sufficient size. This system is emphatically not racially based: it allows voters to organize themselves on whatever basis they wish. It has actually been tried in a few jurisdictions -- including the proverbially American city of Peoria, Illinois -- and has had notable success in all of them. President Clinton said that she had seemed to advocate proportional representation, a position he called "antidemocratic and very difficult to defend." Antidemocratic? That will come as news to the good people of Germany, Spain, the Netherlands, and Sweden, among other countries. Indeed, most of the electorates of Continental Europe, including those of the liberated East, elect their legislatures under some form of proportional representation; so do the Irish, the Italians, and the Israelis; and so will the New Zealanders, who passed a referendum on the subject in 1993.

Congress – Structure Congress today spends little time in actual deliberation. The principal work of Congress is research, investigation, and constituency service. This is reflected in the committee structure of Congress. Both the House and the Senate have a number of specialized committees. These committees are further divided into many subcommittees. Some committees are permanent and others are formed for specific issues or jointly between the House and the Senate. The reliance on a committee structure has made Congresspersons specialists. The question that arises from this concerns the short length of terms and incumbency in relation to democracy. Democracy favors turnover; representatives come up for election every two years. However, to be an effective specialist requires a lengthy time in office. Standing Committees – Permanent committees with the power to propose and write legislation that covers a specific subject Select Committees – Temporary committees set up to address a particular issue Joint Committee – A committee formed of members from the House and Senate Conference Committee – A joint committee created to work out a compromise on the passage of legislation.

Agriculture Appropriations Armed Services Budget Education and Workforce Energy and Commerce Financial Services Government Reform House Administration International Relations Senate Committees Agriculture Appropriations Armed Services Banking, Housing, Urban Affairs Commerce, Science Energy and Natural Resources Environment and Public Works Finance Judiciary Resources Rules Science Select Intelligence Small Business Standards of Official Conduct Transportation and Infrastructure Veterans Affairs Ways and Means Foreign Relations Governmental Affairs Judiciary Health, Education, Labor Rules and Administrations Select Intelligence Small Business Veterans Affairs Congress: Structure - Committees House Committees

Article II: Presidency Why the Framers choose to have a president remains something of a mystery. The Federalist Papers shed little light on the reasons for a presidency. Federalist #70 , written by Alexander Hamilton, is the generally cited source. The President, according to Hamilton, would have “Energy in the Executive.” This energy is manifested in the assertiveness of the president, for whom an individual, not a council, is necessary in order to provide unity and quick decisions. Hamilton notes that the presidency is not a monarchy, where a concurring council, as in the case of England, is necessary but not always effective. Hamilton also notes the problems with state of New York’s executive branch, a council system. Dahl (2002, 68) notes that the Framer’s initially favored a more parliamentary system in which Congress elected the executive but feared that the executive would not be independent enough from Congress. The electoral college system was chosen because they thought the electors of the Electoral College, like the aristocratic Senate, would exercise prudent and independent judgment in their votes. The development of the party system in the early 1800s destroyed this idea, but the Framers did not have the benefit of hindsight. A Parliamentary system provides some distance between the executive and the people, but is more efficacious. The Jackson presidency helped develop the myth that only the President truly embodied the will of the people, by way of election by “all the people.” Whereas, the Framer’s intent seems to be that the legislature would embody the will of the people or it would diffused so that it did not was not concentrated in a single institution.

Article II: Sections 2 & 3: Enumerated Powers of the President The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, and he shall have power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment. He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all

Article II – Presidency – War Powers The Prize Cases 67 U.S. 635 (1863) Facts President Lincoln, at the commencement of hostility by the Southern states, ordered a blockade of Southern ports without congressional approval in April 1861. A few months later, Congress retroactively approved President Lincoln’s orders. Four ships, registered in foreign countries, were captured running the blockade prior to Congress’ approval of the President’s orders. Question Was President Lincoln’s order, tantamount to a declaration of war? If so, is such a tacit declaration of war, without the initial approval of Congress, allowable? Findings: Yes. A de facto state of civil war existed prior to the issuance of President Lincoln’s order to blockade the Southern ports. “The present civil war between the United States and the so-called Confederate States has such character and magnitude as to give the United States the same rights and powers which they might exercise in the case of a national or foreign war, and they have, therefore, the right jure bello to institute a blockade of any ports in possession of the rebellious States.” See also Ex Parte Milligan (1866). The Court ruled that President Lincoln’s suspension of habeas corpus, during the Civil War, was constitutional only in areas where civilian courts were not operable.

Article II – Presidency – War Powers Korematsu v. U.S. 323 U.S. 214 (1944) Facts: President Roosevelt’s Executive Order 9066, Exclusion Order #34, created a zone of exclusion for Japanese residents and Japanese-American citizens. West Coast Japanese were moved to relocation camps in other parts of the U.S. Fred Korematsu refused to leave San Leandro, CA. and was arrested and imprisoned. Question: Does the President have the power to relocate citizens by ethnicity through his power as Commander in Chief? Finding: Yes. Such measures ordered by the President or Congress - even if they constitute de jure racial discrimination, normally subject to “strict scrutiny” - are acceptable during emergencies. Korematsu’s conviction was overturned in 1984, and he was awarded the Presidential Medal of Freedom by President Clinton in 1998. President George H.W. Bush apologized for the internment of Japanese-Americans during WWII and signed into law 1.2 billion in reparations and 400 million in benefits. Documents made available in 2005 prove that U.S. military intelligence, during World War II, decided that Japanese-Americans were not a security risk even as the Court heard Korematsu and related cases. Fred Korematsu

Article II: Presidency – War Powers Youngstown Sheet and Tube Co. v. Sawyer 343 U.S. 579 (1952) Fact: President Truman issued an executive order federalizing the operation of steel mills after a threatened strike by the United Steel Workers union. A strike would have severely affected the war in Korea. The Taft-Hartley Act, could have been used to suspend a strike, but the President refused to use it for political reasons. Question: Does the President have the power to seize private property, such as steel mills, through his power as Commander in Chief? Finding: No. The President’s power as Commander in Chief does not extend to the seizure of private property. Although Justice Black wrote the majority opinion, Justice Jackson’s concurring opinion is the most cited. Justice Jackson divided Presidential authority vis a vis Congress into three categories, ranked in descending order of legitimacy: (1) those cases in which the President was acting with express or implied authority from Congress, (2) cases in which Congress had thus far been silent, and (3) cases in which the President was defying congressional orders. He classified this case as falling within the third category. Justice Jackson’s decision is referred to as “functionalist.” “Presidential power might depend on practical considerations, including the gravity of the problem the President confronted” (Fallon 2004, 177).

Article II: Presidency – War Powers Some Acts of War by the President with Ipso Facto Concurrence of Congress Tripoli or Barbary States War (1801 - 1805) Boxer Rebellion (1900) Mexican Expedition (1915) North Atlantic Campaign (1914 - 1917) Russian Expedition (1918 – 1920) Nicaragua Expedition (1926) North Atlantic Campaign (1940 – 1941) Korean War (1950 – 1953) (Declared a War by Congress in 2000) Bay of Pigs, Cuba (1961) Dominican Republic (1965) Lebanon (1982) Grenada (1983) Libya (1986) Persian Gulf (Iran) 1987 Panama (1989) Iraq War (1990) Somalia Expedition (1993) Iraq (No Fly Zones) (1996 – 2002) Serbia (1997)

Article II: Presidency – War Powers Some Acts of War by the President with De Facto Authorization by Congress War of 1812 Florida Expeditions (1812 & 1816) Tripoli (1815) Texas Annexation (1844) Mexican-American War (1846) Spanish-American War (1898) Mexican Expeditions (1914 – 1917) Vietnam (1954) R.O.C. or Taiwan (1955) Lebanon (1958) Cuban Missile Crisis (1962) Vietnam (1964) Cambodia (1971) Angola (1976 – 1985) Nicaragua (1981 – 1987) El Salvador (1980 – 1989) Afghanistan (2001 – Present) Iraq War (2003 – Present)

Article II: Presidency – War Powers – “War on Terror” The events of September 11, 2001 formally initiated the “War on Terror”, although the U.S. had been engaged in counterterrorism against groups based in West Asian countries since the late 1970s. The capture of persons, primarily in Afghanistan, but not limited to that country, associated with the Taliban and al-Qaeda brought many questions. The resolution of these questions was complicated by the uncertainty and the public perception of the threat posed by such groups. Holding detainees in the U.S. would have caused problems namely a maelstrom of publicity by zealous attorneys eager to take on cases. The government was in dire need of human intelligence and very concerned about guarding secrets. Therefore, Guantanamo Bay, Cuba, where a U.S. naval base is located, was chosen as the location to hold and interrogate the detainees. The U.S. has a perpetual lease with the state of Cuba, but the lease agreement states that Cuba is the “ultimate sovereign.” The territorial ambiguity and proximity of Guatanamo Bay, Cuba to the U.S. made it an ideal place to hold the detainees. The first question raised is does the President have the authority to issue orders concerning how the detainees are to be treated? "In the Authorization for Use of Military Force (AUMF), Congress empowered the President “to use all necessary and appropriate force against those ... he determines planned, authorized, committed, or aided the terrorist attacks ... on September 11, 2001.” The AUMF is a de facto congressional declaration of war. And, no, this is not the first time that Congress has declared a de facto war against a non-state entity. Congress, in 1805, gave President Jefferson the power to pursue pirates, based in North Africa, raiding U.S. ships.

Article II: Presidency – War Powers – “War on Terror” The second question is whether Guantanamo Bay, Cuba, called “Gitmo” in Navy and Marine Corps lingo, falls under the jurisdiction of U.S. courts and whether the detainees have the right of habeas corpus. In Rasul v. Bush (2004), the Court said yes to both with limitations concerning habeas corpus. Returning to the first question, we know that the AUMF is a de facto congressional declaration of war, but the other question was did the President have the authority to determine the treatment of detainees, particularly their access to the U.S. justice system? “In Hamdi v. Rumsfeld (2004), five Justices recognized that detaining individuals captured while fighting against the United States in Afghanistan for the duration of that conflict was a fundamental and accepted incident to war. Thereafter, the Defense Department established Combatant Status Review Tribunals (CSRTs) to determine whether individuals detained at the U.S. Naval Station at Guantanamo Bay, Cuba, were “enemy combatants.” As a result of Hamdi , and in order to preclude appeals, Congress stepped in and passed the Detainee Treatment Act of 2005 (DTA) which amended 28 U.S.C. section 2241 to provide that “no court, justice, or judge shall have jurisdiction to ... consider ... an application for ... habeas corpus filed by or on behalf of an alien detained ... at Guantanamo,” and gave the D.C. Court of Appeals “exclusive” jurisdiction to review CSRT decisions.

Article II: Presidency – War Powers – “War on Terror” The Hamdi decision led to an all out pissing contest between Congress and the Court. The Court reacted to the DTA in Hamdan v. Rumsfeld (2006) by declaring the amended section 22 U.S.C. 2241 (e) (1) of the DTA unconstitutional. Congress reacted by passing the Military Commissions Act of 2006 (MCA), “which amended § 2241(e)(1) to deny jurisdiction with respect to habeas actions by detained aliens determined to be enemy combatants, while § 2241(e)(2) denies jurisdiction as to “any other action against the United States ... relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement” of a detained alien determined to be an enemy combatant. MCA § 7(b) provides that the 2241(e) amendments “shall take effect on the date of the enactment of this Act, and shall apply to all cases, without exception, pending on or after [that] date ... which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained ... since September 11, 2001.” “The D.C. Court of Appeals concluded that MCA § 7 must be read to strip from it, and all federal courts, jurisdiction to consider petitioners' habeas applications; that petitioners are not entitled to habeas or the protections of the Suspension Clause, U.S. Const., Art. I, § 9, cl. 2, which provides that “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it”; and that it was therefore unnecessary to consider whether the DTA provided an adequate and effective substitute for habeas."

Article II: Presidency – War Powers – “War on Terror” This led to the most recent case, Boumediene v. Bush (2008). First, the Court concluded that the MCA did in fact deny federal courts jurisdiction to hear habeas corpus actions . Then, the Court had to deal with the issue of whether Guantanamo Bay, Cuba was within the reach of the U.S. Constitution. It concluded it was. This means that the Suspension Clause has full effect at our naval base in Guantanamo Bay, Cuba . By the way, the Suspension Clause is Article 1, section 9, clause 2, and provides, "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." Next the Court turned to the rights possessed by the enemy combatants at Guantanamo Bay, Cuba. Aliens detained there as enemy combatants were entitled to the privilege of habeas corpus to challenge the legality of their detention . This is the significant holding of the case; the one correctly focused on by the media. In fact, most scholars now think that this part of the decision will eventually lead to the closure of the detention center in Guantanamo Bay, Cuba because the legal proceedings will so disrupt the operation of the place and perhaps show even further to the world some of the things that went on there that the U.S. wanted to keep quiet for the past six or so years. But the Court wasn't yet finished. It also concluded that the provision of the MCA denying federal courts jurisdiction to hear habeas corpus actions pending at the time of its enactment was an unconstitutional suspension of the Great Writ. Finally, in words that were no doubt motivated by a "majority of the majority's" sense that six years of detention without meaningful judicial review was just fundamentally wrong, the Court concluded that detainees were entitled to prompt habeas corpus hearings and could not be required to exhaust other review procedures.

Article II: Presidency – War Powers (Detention of Enemy Combatants) Hamdi v. Rumsfeld 542 U.S. 507 (2004) Facts: Yaser Hamdi was captured by the Northern Alliance in Afghanistan in December 2001 and turned over to the U.S. military. Hamdi was then transferred to the detention center, on the naval base, at Guantanamo Bay, Cuba and held as an “enemy combatant.” However, it was soon discovered that Hamdi was a U.S. citizen in addition to a Saudi citizen. Hamdi was then moved to U.S. Naval brigs in South Carolina and Virginia. As an enemy “unlawful” combatant, he was held indefinitely without access to counsel, filing of formal charges, or a trial. Hamdi’s father, as a “Next Friend” (legal custodian), argued that Yaser Hamdi was being held unconstitutionally in violation of his Fifth Amendment right to due process. The U.S. government stated that the President had the right, in wartime, to determine who could be held as an enemy combatant, thus, restricting access to the justice system. The district court ruled for Hamdi, telling the government to release him. On appeal, the Fourth Circuit Court of Appeals reversed, finding that the separation of powers required federal courts to practice restraint during wartime because "the executive and legislative branches are organized to supervise the conduct of overseas conflict in a way that the judiciary simply is not." The Appeals Court therefore found that it should defer to the Executive Branch's "enemy combatant" determination. In October 2004, In lieu of a hearing and after renouncing his U.S. citizenship, Hamdi was freed from U.S. custody and returned to Saudi Arabia. Yaser Hamdi Yaser Hamdi

Article II: Presidency – War Powers Hamdi v. Rumsfeld 542 U.S. 507 (2004) Question: Did the government violate Hamdi's Fifth Amendment right to Due Process by holding him indefinitely, without access to an attorney, based solely on an Executive Branch declaration that he was an "enemy combatant" who fought against the United States? Does the separation of powers doctrine require federal courts to defer to Executive Branch determinations that an American citizen is an "enemy combatant"? Finding: Yes and No. Justice O’Connor in a plurality opinion, found that as a U.S. citizen, although an enemy combatant, Hamdi is entitled to limited due process. The limitation of due process is to facilitate the President’s ability to conduct war while not rendering a U.S. citizen completely helpless. The designation enemy combatant has been rhetorically substituted by the Bush Administration for the correct term “unlawful combatant.” An unlawful combatant is a civilian who engages in armed actions against a state, as defined in the International Humanitarian Law (ILH), and is subject to prosecution under the law of the detaining state. Justice Scalia dissenting, quoted Federalist #8.: "The Founders well understood the difficult tradeoff between safety and freedom. "Safety from external danger," Hamilton declared, "is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war; the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty, to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they, at length, become willing to run the risk of being less free."

Article II: Presidency – War Powers (Military Commissions) Hamdan v. Rumsfeld 548 U.S. 557 (2006) Facts: Salim Hamdan, a Yemeni citizen and Osama bin Laden’s former bodyguard and chauffeur, was captured by the Northern Alliance in Afghanistan in late 2001 and transferred to U.S. military custody. Hamdan was then transferred to the detention center in Guantanamo Bay, Cuba. In July 2003, President Bush deemed Hamdan, and five others captured in Afghanistan, eligible for trial by military commission for unspecified terrorist related actions. In 2004, he was charged with “conspiracy to commit . . . offenses triable by military commission.” After the Hamdi (2004) decision, Hamdan received a review hearing before the Combatant Review Status Tribunal (CRST), which designated him an enemy combatant. Hamdan then filed habeas corpus and mandamus petitions arguing that: he was actually subject to trial by court-martial under the Uniform Code of Military Justice (UCMJ) rather than by the military tribunal authorized by President Bush. In 2004, the D.C. Federal District Court granted Hamdan request for habeas corpus, but the D.C. Court of Appeals reversed. Salim Hamdan

Article II: Presidency – War Powers Hamdan v. Rumsfeld 548 U.S. 557 (2006) Question: 1. Is the military commission established by the President to try Hamdan, and others captured under similar circumstances, for alleged war crimes in the “War on Terror” authorized under Congress's Authorization for the Use of Military Force (AUMF); the Uniform Code of Military Justice (UCMJ); or the inherent powers of the President? 2. Can Hamdan and others similarly situated obtain judicial enforcement from an Article III court of rights protected under the 1949 Geneva Convention in an action for a writ of habeas corpus challenging the legality of their detention by the Executive branch?

Article II: Presidency – War Powers Hamdan v. Rumsfeld 548 U.S. 557 (2006) Finding: No and Yes. Justice Stevens’ found that such military commissions are not an inherent power of the presidency nor authorized by congressional law. Thus, Hamdan, and others being detained under the same circumstances, were subject to trial under the UCMJ. The Court found that the Geneva Convention has been incorporated into the UCMJ. The military commission does not meet the requirements of the Uniform Code of Military Justice or of the Geneva Convention, it violates the laws of war and, therefore, cannot be used to try Hamdan. A military tribunal would have significantly reduced the petitioners rights by: excluding his counsel from documents deemed secret by the President or other members of the Executive Branch, allowing for evidence gathered by torture, hearsay, and unsworn statements, and precluding any judicial appeals. Justices Scalia, Thomas, and Alito dissented. Justice Thomas stated: “… it is clear that this Court lacks jurisdiction to entertain petitioner’s claims, see ante , at 1–11. The Court having concluded otherwise, it is appropriate to respond to the Court’s resolution of the merits of petitioner’s claims because its opinion openly flouts our well-established duty to respect the Executive’s judgment in matters of military operations and foreign affairs. The Court’s evident belief that it is qualified to pass on the “[m]ilitary necessity,” ante , at 48, of the Commander in Chief’s decision to employ a particular form of force against our enemies is so antithetical to our constitutional structure that it simply cannot go unanswered. I respectfully dissent.”

Article II: Presidency – Treaty Power U.S. v. Belmont 301 U.S. 324 (1937) Fact: In 1933, President Roosevelt reestablished diplomatic relations, by executive agreement and without the approval of the Senate, with the Soviet Union. The Soviet Union pressed claims to recover monies held by U.S. banks after the nationalization of Russian companies in 1918. One of these banks, August Belmont Co, held monies deposited by the now nationalized Petrograd Metal Works but refused to hand it over to the Soviet government after a state district ruling. Question: Can the president engage in treaty making by executive agreement without Senate approval? Do such agreements override valid state law? Finding: Yes. Some types of treaties can be made by executive agreement. Justice Sutherland stated, “the negotiations, acceptance of the assignment and agreements and understandings in respect thereof were within the competence of the President may not be doubted. Governmental power over external affairs is not distributed, but is vested exclusively in the national government. And in respect of what was done here, the Executive had authority to speak as the sole organ of that government. The assignment and the agreements in connection therewith did not, as in the case of treaties, as that term is used in the treaty making clause of the Constitution require the advice and consent of the Senate.” See also U.S v. Pink (1942), Dames & Moore v. Reagan (1981), and the Bricker Amendment.

Article II – Presidency – Treaty Powers Carter v. Goldwater 446 U.S. 996 (1979) Facts: President Carter terminated the Sino-American Mutual Defense Treaty with the Republic of China (R.O.C. or Taiwan). Senator Barry Goldwater and other Republican members of Congress filed a lawsuit against President Carter stating that the President required approval from Senate to break treaties. Question: While Article II, section 2 of the Constitution requires Senate approval of treaties it does not mention the necessity of Senate approval to terminate treaties. Is Senate approval required in order to terminate treaties? Findings: The Court granted Certiorari but did not proceed to oral arguments. The Court remanded the case to a federal district court with instructions to dismiss. Justice Rehnquist opined that the case was political and not judicial. Justice Powell opined that the case did not merit judicial review but would have had merit had Congress issued a resolution in opposition to President Carter’s termination of the treaty. The question of whether the President can terminate treaties without Senate approval thus remains open but leans towards Powell’s opinion concerning a tacit approval by way of not presenting an opposition by resolution.

Article II: Presidency – Treaty Powers Medellin v. Texas 552 U.S. ___ (2008) Facts: “ Jose Medellin, a Mexican citizen, was convicted and sentenced to death for participating in the gang rape and murder of two teenage girls in Houston. Medellin raised a post-conviction challenge arguing that the state had violated his rights under the Vienna Convention, a treaty to which the United States is a party. Article 36 of the Vienna Convention gives any foreign national detained for a crime the right to contact his consulate. After his petition was ultimately dismissed by the Supreme Court, Medellin's case returned to the Texas Court of Criminal Appeals. Medellin's argument rested on a ruling of the International Court of Justice (ICJ) holding that the U.S. had violated the Vienna Convention rights of fifty one Mexican nationals (including Medellin) and that their convictions must be reconsidered. Medellin argued that the Vienna Convention granted him an individual right that state courts must respect, a possibility left open by the Supreme Court's 2006 decision in Sanchez-Llamas v. Oregon . Medellin also cited a memorandum from the President of the United States that instructed state courts to comply with the ICJ's rulings by rehearing the cases . Medellin argued that the Constitution gives the President broad power to ensure that treaties are enforced, and that this power extends to the treatment of treaties in state court proceedings.”

Article II: Presidency – Treaty Powers Medellin v. Texas 552 U.S. ___ (2008) Facts Continued: “ The Texas Court of Criminal Appeals rejected each of Medellin's arguments and dismissed his petition. The court interpreted Sanchez-Llamas as standing for the principle that rulings of the ICJ are not binding on state courts. The Texas court stood by its position that allowing Medellin to raise the Vienna Convention issue after his trial would violate state procedural rules, and that those rules were not supplanted by the Convention. The President had no authority to order the enforcement in state court of an ICJ ruling, because that would imply a law-making power not allocated to him by the Constitution.” Question: 1. Did the President act within his constitutional and statutory foreign affairs authority when he determined that states must comply with the U.S. treaty obligation under the Vienna Convention by enforcing a decision of the International Court of Justice? 2. Does the Constitution require state courts to honor the treaty obligation of the U.S. by enforcing a decision of the International Court of Justice?

Article II: Presidency – Treaty Powers Medellin v. Texas 552 U.S. ___ (2008) Finding : No and No. “ An international treaty is not binding domestic law unless Congress has passed legislation to implement it or it is “self executing .” The treaty here involves neither. The Court also rejected Medellín's claim that Article 94 of the U.N. Charter requires the United States to "undertake to comply" with the ICJ ruling. Chief Justice Roberts observed that Article 94(2) of the Charter provides for explicit enforcement for noncompliance by referral to the United Nations Security Council, and for appeals to be made only by the aggrieved state (not an individual such as Medellín). Even so, the United States clearly reserved the right to veto any Security Council resolutions. The majority also held that the ICJ statute contained in the U.N. Charter also forbade individuals from being parties to suits before the International Court. The ICJ statute is a pact between nations , Justice Roberts said, and only nations (not individuals) may seek its judgment. Relying on Sanchez-Llamas , the Supreme Court then held that, absent a clear and express statement to the contrary in the relevant treaties, domestic procedural rules govern a treaty's implementation.”

Article II: Presidency – Treaty Powers Medellin v. Texas 552 U.S. ___ (2008) Finding Continued: “ The Court also rejected Medellín's argument that the President's February 28, 2005 Memorandum was binding on state courts. The majority opinion relied heavily on Youngstown Sheet & Tube Co. v. Sawyer (1952). The Court recognized that "plainly compelling interests" were at stake in the Medellín case. Yet: Such considerations, however, do not allow us to set aside first principles. The President's authority to act, as with the exercise of any governmental power, 'must stem either from an act of Congress or from the Constitution itself .‘ The majority concluded that neither condition had been met. Neither the government nor the defendant had cited any statutory authority which authorized the President to act. Instead, the President claimed that the Optional Protocol and U.N. Charter implicitly gave him the authority to act. The Court disagreed: "The President has an array of political and diplomatic means available to enforce international obligations, but unilaterally converting a non-self-executing treaty into a self-executing one is not among them.“Finally, Medellín argued that the President's Memorandum was a valid exercise of presidential power based on the president's authority to "take Care that the Laws be faithfully executed", as granted in the Article II, §3 of the United States Constitution. The majority observed that the government refused to rely on Article II, §3, which undercut Medellín's claim. Justice Roberts then concluded that, since the ICJ's decision in Avena was not domestic law, the "take care" clause did not apply.” (Information in quotations taken from Wikipedia http://en.wikipedia.org/wiki/Medellin_v._Texas).

Article II: Presidency – Treaty Powers Medellin v. Texas 552 U.S. ___ (2008) The Medellin case is important in Constitutional jurisprudence because it deals with the applicability of International law to states. In essence, are states bound to discharge international law, in this case by the International Court of Justice (ICJ), in the absence of congressional ratification? And, is the President, in this case by memorandum, constitutionally able to make the states discharge international law? Chief Justice Roberts wrote the majority opinion. Please note the following significant statements (from the summary). "The International Court of Justice (ICJ), located in the Hague, is a tribunal established pursuant to the United Nations Charter to adjudicate disputes between member states. In the Case Concerning Avena and Other Mexican Nationals ( Avena or Mexico v. U.S .) 2004 I.C.J. 12 (Judgment of Mar. 31) ( Avena ), that tribunal considered a claim brought by Mexico against the United States. The ICJ held that, based on violations of the Vienna Convention, 51 named Mexican nationals were entitled to review and reconsideration of their state-court convictions and sentences in the United States..."

"While a treaty may constitute an international commitment, it is not binding domestic law unless Congress has enacted statutes implementing it or the treaty itself conveys an intention that it be “self-executing” and is ratified on that basis . See, e.g., Foster v. Neilson , 2 Pet. 253, 314, 7 L.Ed. 415. The Avena judgment creates an international law obligation on the part of the United States, but it is not automatically binding domestic law because none of the relevant treaty sources-the Optional Protocol, the U.N. Charter, or the ICJ Statute-creates binding federal law in the absence of implementing legislation, and no such legislation has been enacted." Article II: Presidency – Treaty Powers Medellin v. Texas 552 U.S. ___ (2008) "First, “[w]hen the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” Youngstown , 343 U.S., at 635 (Jackson, J., concurring). Second, “[w]hen the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain.” Id., at 637. In such a circumstance, Presidential authority can derive support from “congressional inertia, indifference or quiescence.” Ibid. Finally, “[w]hen the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb ,” and the Court can sustain his actions “only by disabling the Congress from acting upon the subject.”

Article II: Presidency – Treaty Powers Medellin v. Texas 552 U.S. ___ (2008) Thus, Chief Justice Roberts finds that unless Congress has something explicit to say, i.e. “enabling legislation,” then both the ICJ ruling and the President’s memo can be dismissed. The three dissenting opinions in Medellin are contra to the majority opinion that treaties are not “self executing.” And, that the majority opinion supports an archaic isolationism by effectively dismissing treaties and decisions made by international bodies. Justice Breyer’s dissenting opinion states: “The Constitution’s Supremacy Clause provides that “all Treaties . . . which shall be made . . . under the authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby.” Art. VI, cl. 2. The Clause means that the “courts” must regard “a treaty . . . as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision . ” Foster v. Neilson , 2 Pet. 253, 314 (1829) (majority opinion of Marshall, C. J.)” Justice Breyer supported his opinion by illustrating that over two hundred years, there have been many self executing treaties.

“ . . . congressional actions indicated that Congress thought further legislation necessary . See also Vázquez 716. The Court has found “self-executing” provisions in multilateral treaties as well as bilateral treaties. See, e.g. , Trans World Airlines, Inc. v. Franklin Mint Corp. , 466 U. S. 243, 252 (1984); Bacardi Corp. of America v. Domenech , 311 U. S. 150, 160, and n. 9, 161 (1940). And the subject matter of such provisions has varied widely, from extradition, see, e.g ., United States v. Rauscher , 119 U. S. 407, 411– 412 (1886), to criminal trial jurisdiction, see Wildenhus’s Case , 120 U. S. 1, 11, 17–18 (1887), to civil liability, see, e.g. , El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng , 525 U. S. 155, 161–163 (1999), to trademark infringement, see Bacardi , supra , at 160, and n. 9, 161, to an alien’s freedom to engage in trade, see, e.g. , Jordan v. Tashiro , 278 U. S. 123, 126, n. 1 (1928).” Article II: Presidency – Treaty Powers Medellin v. Texas 552 U.S. ___ (2008) “ And by 1840, instances in which treaty provisions automatically became part of domestic law were common enough for one Justice to write that “it would be a bold proposition” to assert “that an act of Congress must be first passed” in order to give a treaty effect as “a supreme law of the land .” Lessee of Pollard’s Heirs v. Kibbe , 14 Pet. 353, 388 (1840) (Baldwin, J., concurring). Since Foster and Pollard, this Court has frequently held or assumed that particular treaty provisions are self-executing, automatically binding the States without more . See Appendix A, infra (listing, as examples, 29 such cases, including 12 concluding that the treaty provision invalidates state or territorial law or policy as a consequence). . . . As far as I can tell, the Court has held to the contrary only in two cases: Foster , supra , which was later reversed, and Cameron Septic Tank Co. v. Knoxville , 227 U. S. 39 (1913).:

Article II: Presidency – Executive Powers In re Neagle 135 U.S. 1 (1890) Facts: President Harrison, acting through the Attorney General, authorized David Neagle, a U.S. Marshal, to act as a bodyguard for a federal judge, Stephen Field, who had been threatened by a former colleague. Neagle shot the attacker and was convicted by the State of California for murder. He appealed his sentence, by writ of habeas corpus, on the grounds that the his act was done “in pursuance of a law of the United States.” Question: In the absence of a federal law allowing the Attorney General to provide bodyguards, must the state allow for the writ of habeas corpus? Findings: Yes. The Court considered the act an executive order and that the protection of a federal judge was a reasonable extension of the president’s power to “take care that the laws be faithfully executed.”

Article II: Presidency - Delegation of Power The Great Depression and World War II provided the impetus for greater governmental regulation that was initially economic but later expanded to other domains such as safety and the environment. In order to deal with increasing overall complexity, as in the case of controlling inflation during World War II ( Yakus v. U.S. 1942), Congress delegated powers to the Executive Branch. Delegation of powers involves the creation of a federal agency, within the Executive Branch, tasked with the power to create and enforce regulations. Regulations are rules, with a high technical specificity, that have the force of law. The overlying law written by Congress is in essence policy from which regulations are made. Historically, the Supreme Court has upheld the delegation of powers. The 1930s, New Deal legislation, cases of Schechter , Panama Refining Co ., and Carter , in which the Court ruled invalid congressional delegation of power to private persons, precluding a separation of powers argument. Delegation of powers between both the Executive and Congress has generally been upheld since Yakus . Morrison v. Olson (1987) involved the delegation of powers, from the Executive to the Congress, in the appointment of special federal prosecutors to investigate the President and executive branch officials. The question, first raised by President Nixon during Watergate and in Morrison by President Reagan, was whether Presidents could fire special prosecutors. The Court said no, although stating that the special prosecutor was still an officer of the executive branch. This case overturned the precedent set in Meyer v. U.S. (1926) in which the Court had invalidated the 1876 Tenure of Office Act as unconstitutional in allowing a president to fire a postmaster only with the consent of the Senate. (See also Humphrey’s Executor v. U.S. 1935).

Article II: Presidency - Delegation of Power As Congress delegated powers to the Executive Branch, it attempted to maintain control over the agencies that it had created by using what is called a “legislative veto.” The veto power is, by the Constitution, an executive power, but Congress gave it itself statutory authority to override or veto regulations that it did not approve of. Recall that regulations are highly specific or technical “rules”, that have the force of law, made by executive agencies. Additionally, this veto power could be statutorily exercised by either house of Congress, in effect allowing a one-house veto. The legislative veto was held unconstitutional in INS v. Chadha (1983) on the grounds of violating Article I (separation of powers). Article I states that both houses of Congress must approve legislation, and that the President must be provided the legislation for her approval or veto. According to Fallon (2004, 181-82), the Court’s decision in Chadha was correct as it now forces Congress to work more responsibly rather than doing what is politically expedient. However, Fallon does not completely dismiss the use of the legislative veto as there can be situations where Congressional delegation of power is clearly not done entirely out of political expediency, for example in Yakus (1942). Indeed, Yakus and Chadha seem contradictory prima facie , but the Court did not rely on a “balancing” or “situational” reading in the Chadha case. In Clinton v. City of New York (1998), the Court found the Line Item Veto Act, which allowed the President to strike items in the federal budget after signing it, unconstitutional on the same grounds as Chadha , i.e. that it violated the separation of powers. Justice Scalia’s dissenting opinion noted that the term veto was misleading, and that in effect the Act allowed for constitutional use of the President’s discretionary spending power. See Fallon (2004, 182-83).

Article II: Presidency – Delegation of Powers U.S. v. Curtiss-Wright Export Corp. 299 U.S. 304 (1936) Facts: Congress passed a law in 1934 delegating authority to the President to specifically bar weapons from being sold to Bolivia and Paraguay, who were at war over the disputed Chaco region. President Roosevelt used the law to issue an arms embargo against the said countries. Curtis-Wright Corporation was charged with illegal sale of weapons to Bolivia. Question: Is this an unconstitutional delegation of legislative powers to the President? Findings: No, the Court found that the power of the President to preside over issues involving foreign affairs was in fact an “inherent power.” Justice Sutherland emphasized that foreign affairs is inherently different from domestic affairs and that as the sole representative of the nation in such matters, the President enjoys extra-constitutional powers.

Article II: Presidency – Immunity U.S. v. Nixon 418 U.S. 683 (1974 ) Facts : A grand jury returned indictments against several aides of President Nixon for the their involvement in the Watergate affair. The special prosecutor, “independent counsel,” in the case, Leon Jaworski, subpoenaed President Nixon for recordings made in the Oval Office. But, President Nixon refused to hand over the tapes, arguing executive privilege in the interests of national security. During this time, President Nixon attempted to erase potentially incriminating information on the tapes. Question: Does the President’s right to protect confidential information, via executive privilege, present absolute immunity from judicial review? Finding: No. The President is not above the law. Neither the separation of powers nor the need to secure confidential information provides unqualified presidential immunity. The Court noted that executive privilege could exist where diplomatic or military secrets were concerned, but this was not the case here. Nixon resigned from office after this case was decided.

Article II: Presidency – Immunity Clinton v. Jones 520 U.S. 681 (1997) Facts: In 1994, Paula Corbin Jones, a former Arkansas state employee, filed suit against President Clinton and Arkansas State Highway Trooper Danny Ferguson for sexual harassment. President Clinton requested the suit be dismissed on grounds of presidential immunity. District Court judge Susan Webber Wright, a former student of Clinton, ruled that a president in office could not be sued deferring the case until President Clinton finished his term. Question: Is a sitting President entitled to presidential immunity against civil law suits arising from events which happened prior to his taking office? Finding: No. The President is not above the law. A sitting President is not immune from civil litigation except under highly unusual circumstances. Neither the separation of powers nor the need to secure confidential information provides unqualified presidential immunity. The separation of powers between the branches of government was designed to provide some degree of independence, but the branches do exercise some controls over each other. Paula C. Jones

Article II: Presidency – Election The presidential electoral system of the U.S. is unique among the democratic countries. The Framers developed a two part electoral system with the same intention as the Senate: the mitigation of abuse by popular majorities (See Hamilton’s Federalist #68 ). The Electoral College had a significant flaw that became apparent by the third presidential election in 1800. The development of political parties, as Dahl (2002, 79) states, “turned the Electoral College into little more than a way of counting votes.” Ironically, the development of political parties had been spurred on by Thomas Jefferson and James Madison as a means of countering the strong standing of Federalists such as George Washington and John Adams. By the election of 1800 it became apparent that the state legislatures had acceded to the political parties in choosing electors. State legislatures determine the qualifications for the electors and choose the electors. The electors, to this day, are prominent businesspersons, politicians, and high level state bureaucrats chosen for their party loyalty. Their party loyalty makes it highly unlikely that they will not vote for their party’s candidate. And, indeed, this is the case historically. These electors form party slates although they actually submit independent votes in December. Thus, states generally have two party slates: a Democratic and a Republican party slate.

Two elections actually compose the Presidential election: a popular plurality vote and a majority electoral vote. The popular vote is a popular election where the winner wins by plurality. The winner of the plurality vote determines which party slate of electors will cast their votes for the candidate of their party. The winner of the electoral vote is by majority, 270 votes for the current 2008 election. The number of electors per state is determined by the number of Representatives plus Senators for that state. Thus, states with larger populations will carry more weight, in the campaign, than less populated states, although the weight of individual voters will be stronger in less populated states. Candidates concentrate their electoral campaigns in the states with the most electoral votes - California, Florida, Texas, and New York- and in “swing states.” Some states are just assumed to be “safe,” providing a disincentive to vote and making it almost impossible for third parties to win that state. Another problem is that is possible for a candidate to win the popular vote and lose the majority vote in the Electoral College. This has happened in four elections: the two most famous are the elections of 1876 and 2000. In the 2000 election G.W. Bush had a margin of only 270 votes over Albert Gore in Florida after the machine recount. Had that margin shifted to Gore, provided that the manual recount was finished, then the democratic slate of electors would have cast their votes, giving Gore a majority in the Electoral College. Article II: Presidency – Election

Article II: Presidency – Election Bush v. Gore 531 U.S. 98 (2000) Facts: The 2000 Presidential Election took place on November 7. On November 8, the Florida Division of Elections reported that Bush had won the popular (plurality vote) election in Florida by a margin of 1,784 votes. Because the margin of victory was below the threshold set by Florida law, a mandatory machine recount was conducted. The recount reduced the margin of victory to just 327 votes. Florida law allows the losing candidate to ask for a manual recount. Presidential candidate Albert Gore requested a manual recount in four counties. However, Florida law required that the counties certify the recounts and present them to the Florida Secretary of State within seven days. Several of the counties could not meet the statutory deadline. The Florida Circuit Court ruled that the Florida Secretary of State, Katherine Harris, had the discretion to review the late, amended recounts. Four counties did not meet the new deadline set by the Secretary of State. Secretary Harris did not accept the late counties’ reasons and proceeded to certify the election results naming Bush the official winner on November 26. On December 8, the Florida Supreme Court ordered a complete manual recount. On December 9, the U.S. Supreme Court overruled the Florida Supreme Court and stayed the recount.

Article II: Presidency – Election Bush v. Gore 531 U.S. 98 (2000) Facts: The Bush legal team argued that a statewide manual recount would violate the Equal Protection Clause of the Fourteenth Amendment because there was no statewide standard as to how to do the recount. The Gore team argued that the Equal Protection argument was implausible because it would effectively require a recount in every state. Every state would have to have a statewide standard in order to be fair. Question: Does the absence of statewide standards for manual recount of votes violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment? Finding: Yes. Because statewide standards do not exist, this is the case in Florida, discrepancies in the manual recount will occur. Also, because of a deadline set by federal law, the day the electors were to actually cast their votes, a recount could not be done on time. Justices Rehnquist, Scalia, and Thomas opined that the Florida Supreme Court had created new election law, which only the Florida legislature was entitled to do. Justices Ginsburg and Stevens agreed with the Gore argument that the Constitution requires that every vote be counted.

Module I: Article IV: Full Faith & Credit and Privileges & Immunities Full Faith & Credit Section 1. Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. Privileges & Immunities Section 2. The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime. No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

Article IV: Full Faith & Credit The Full Faith and Credit Clause provides that states respect the laws and judgments of other states. However, this clause has seen very little application. Historically, states have rarely respected the laws and judgments of other states, and the Court has distinguished between the need to respect laws (legislative acts and common law) verses judgment (legal decisions). Judgments have the upper hand over state laws. See Baker v. General Motors (1998). When conflicts have arisen between the laws of one state and the policies or laws of another state, the federal government has been very reluctant to force a state to adhere to the laws of another state. The only exceptions to this have been miscegenation ( Loving v. Virginia 1966), polygamy ( Reynolds v. U.S . 1878), civil judgments, and criminal convictions. The Full Faith & Credit Clause has entered the public spotlight because of its potential use in countering the federal and state Defense of Marriage Acts (DOMAs). These DOMAs preclude state respect of the decisions of states allowing gay marriage. As of 2008, thirty nine states have passed DOMAs. The landmark case of Lawrence v. Texas (2003) upheld the rights of homosexuals to sexual privacy within their homes negating the constitutional ability of states to criminalize sodomy. Justice Scalia in his dissenting opinion stated that, “application of the Full Faith and Credit Clause to the majority’s decision in that case might destroy the structure... that has permitted a distinction to be made between heterosexual and homosexual unions." If Scalia's opinion holds true, the majority ruling could negate the DOMA and create a legal situation in which all states might eventually be obliged to recognize same-sex marriages performed in Massachusetts or California. See Goodridge v. Dept. of Public Health 798 N.E.2d 941 (2003),a Massachusetts case, which held upheld gay marriage on the grounds of due process and equal protection.

Article IV: Full Faith & Credit Goodridge, et al. v. Massachusetts Dept. of Public Health 798 N.E.2d 941 (2003) Facts: In April of 2001, seven gay and lesbian couples attempted to acquire marriage licenses from the Massachusetts Department of Public Health but were denied because Massachusetts does not recognize gay marriages. The couples filed suit against the Department of Public Health alleging that the action of denying them a marriage license violated the laws of the Commonwealth and their rights under the Massachusetts Constitution. Question: Does the exclusion of gay couples from the right to marriage violate the equal protection, due process, and liberty and freedom clauses of the Massachusetts Constitution? Finding: Yes. The Massachusetts Supreme Court ruled 4-3 that gay couples have the legal right to marry. “Since marriage brings with it certain material advantages, citizens denied the right to choose to marry are excluded from the full range of human experience and denied full protection of the laws for one's avowed commitment to an intimate and lasting relationship.” The Mass. Court argued that the “centuries-old notion of marriage as limited to a man and a woman should be updated to define the institution as the exclusive, voluntary union of two persons as spouses.” In another 4-3 ruling, the Mass. Court, saying that “separate is seldom if ever equal”, ruled that a bill proposed by the legislature which would allow civil unions but ban gay marriages would establish an unconstitutional, inferior, and discriminatory status for gay couples.

Article IV: Privileges and Immunities Several theories about the constitutional meaning of the Privileges and Immunities Clause have been proposed, but jurists seemed to have settled on one. The Privileges and Immunities Clause is intended to protect the fundamental rights of one citizen in another state, i.e. life, liberty, and property. The Court uses a two-part test to determine violations of the Privileges and Immunities Clause. (1) Is there a fundamental right in question? (2) Is the state justified in the discrimination, i.e. provides a compelling state interest ? For example, can a state restrict the hunting of certain game animals to its own citizens? In Baldwin v. Montana Fish and Game Commission (1978), the Court said a law, prohibiting non-state residents from hunting certain animals, does not violate the Privileges and Immunities Clause because hunting is a recreational activity not a fundamental right. A compelling state interest on the part of Montana would be to prevent certain game animals from being over hunted. See also Hicklin v. Orbeck (1978) in which the Court found unconstitutional an Alaska law that gave hiring preference to Alaska residents, over residents of other states, working on the oil and gas pipelines. As an example, how would this apply to use of higher tuition for non-state residents of public universities? See also the Slaughterhouse Cases (1873), which attempted, but failed, in the use of the Fourteenth Amendment’s Privileges or Immunities Clause to break a state imposed semi-monopoly on the slaughter business in the City of New Orleans. In that case, the Court decided that the Privileges or Immunities Clause applied only to federal actions, not state, thus limiting its use to this day. The Due Process Clause, see concept of “Substantive Due Process”, of the Fourteenth Amendment then replaced the Privileges or Immunities Clause, as the preferred constitutional argument.

Module I: Federalism Objectives Define federalism and discuss the differences between federal and unitary system Understand the advantages and disadvantages of the U.S. federal system. Understand the evolution of federalism: dual, cooperative, and regulatory. Understand the role of the U.S. Supreme Court in defining the basic framework of American federalism. Identify the powers, limitations, and roles of state government. Understand the role of federal aid to states and local governments.

Federalism – State and Center in U.S. Government The United States has a federal system of government, in which power is constitutionally shared between a national government and state governments. In this manner, both the states and the federal government are separate sovereigns, although federal law will generally supersede state law via Article VI, the Supremacy Clause. Justice Clarence Thomas stated, “dual sovereignty is the defining feature of our nation’s constitutional blueprint . . . [States] did not consent to become mere appendages of the federal government.” Federalism is not the predominant system of government in the world. Most countries are unitary systems. A unitary system is characterized by a powerful central government and weak departmental government. In a unitary system, many aspects of governmental function are uniform throughout the country. An example is public education. In the U.S. public education is still largely a state function, which accounts for some of the tremendous disparity in education in the United States. The Tenth Amendment states that powers not enumerated in the Constitution are granted to the states. Throughout U.S. history this has been interpreted as allowing the states “police powers.” The traditional police powers are education, welfare, health, police, safety, property, and morals. Local governments do not have the same level of autonomy as states. Local governments are creatures of the state. They are allowed by the state to make laws, called ordinances, but are subject to laws, policies, and oversight by the state.

Federalism – Dual and Cooperative Dual federalism, characterized by a rather strict separation of functions and powers between the states and the federal government, was predominant until 1937. The Supreme Court acted as a referee and for the most part supported a rigid Constitutional interpretation. For example, as industry expanded in the U.S. it brought substantial changes and concerns about labor. Unions and workers demanded higher wages, less working hours, safety checks, and prohibition of child labor. In a series of decisions during the early twentieth century the Supreme Court denied federal and sometimes state regulation of labor on the basis of individual and states’ rights under the Fifth and Tenth Amendments. See Hammer v. Dagenhart (1918) and Lochner v. New York (1908). In the late 1930s, as part of the New Deal, the concept of cooperative federalism emerged. Cooperative federalism is characterized by cooperation and shared functions than by conflict and competition. Cooperative federalism is a very integral aspect of U.S. government because most states are dependent to a great extent on federal monies, called grants, to aid them with the projects and programs they desire to implement. Regulatory federalism describes federal and state relationships in terms of federal laws which impose mandates on the states. Conservatives call these “unfunded mandates.” These usually involve regulations concerning the environment or welfare issues. A good example is South Dakota v. Dole (1987), where Congress desiring a uniform drinking age of twenty one for all states restricted funding for highway maintenance for noncompliant states.

Federalism – State and Center in U.S. Government Tenth Amendment “ The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The Tenth Amendment is generally referred to as the States’ Rights Amendment. It makes explicit that the federal government is limited to the powers delegated in the Constitution. In United States v. Sprague (1931) the Court noted that the [Tenth] amendment "added nothing to the [Constitution] as originally ratified." The Commerce Clause is one of the Article Section 8 powers specifically delegated to Congress; thus, its interpretation is very important in determining the scope of federal legislative power. In the Twentieth Century, the economic challenges of the Great Depression triggered a reevaluation in both Congress and the Supreme Court of the use of the Commerce Clause power to maintain a strong national economy. In Wickard v. Filburn (1942), in the context of the Second World War, the Court ruled that federal regulations of wheat production could be applied to wheat grown for "home consumption" on a farm: that is, wheat grown to be fed to farm animals or otherwise consumed on the farm. The reasoning was that a farmer's growing his own wheat can have a substantial cumulative effect on interstate commerce, because if all farmers were to exceed their production quotas, a significant amount of wheat would either not be sold on the market or would be bought from other producers. Hence, in the aggregate, if farmers were allowed to consume their own wheat, it would affect the interstate market in wheat!

Federalism – State and Center in U.S. Government – Tenth Amendment the Court rarely declares laws unconstitutional for violating the Tenth Amendment. In the modern era, the Court has only done so where the federal government compels the states to enforce federal statutes . In 1992, in New York v. United States (1992), for only the second time in fifty five years, the Court invalidated a portion of a federal law for violating the Tenth Amendment. The case challenged a portion of the Low-Level Radioactive Waste Policy Amendments Act of 1985. The act provided three incentives for states to comply with statutory obligations to provide for the disposal of low-level radioactive waste. The first two incentives were monetary. The third, which was challenged in the case, obliged states to take title to any waste within their borders that was not disposed of prior to January 1, 1996, and made each state liable for all damages directly related to the waste. The Court ruled that the imposition of that obligation on the states violated the Tenth Amendment . Justice O’Connor wrote that the federal government can encourage the states to adopt certain regulations through the spending power (i.e., by attaching conditions to the receipt of federal funds; see South Dakota v. Dole 1987), or through the commerce power (by directly pre-empting state law). However, Congress cannot directly compel states to enforce federal regulations . In 1997, the Court again ruled that a federal law, this time the Brady Handgun Violence Prevention Act, violated the Tenth Amendment ( Printz v. United States ). The law required state and local chief law enforcement officials (CLEOs) to conduct background checks on persons attempting to purchase handguns. Justice Scalia, writing for the majority, applied New York v. United States to show that the law violated the Tenth Amendment. Since the law “forced participation of the State’s executive in the actual administration of a federal program,” it was unconstitutional.

Federalism – State and Center in U.S. Government – New Federalism The Court’s turn, under the tenure of Chief Justice William Rehnquist, towards a more states’ rights oriented interpretation is generally referred to as “New Federalism.” The more conservative Court has used the Tenth and Eleventh Amendments to change the direction set by the Court in the wake of the Great Depression, World War II, and the Civil Rights Movement. These events, in line with a more activist Court, precipitated an expansive use of the Commerce Clause. The expansive use of the Commerce Clause peaked in the 1960s when Congress used it to mitigate racial discrimination in the Heart of Atlanta Motel and Katzenbach cases (1964). New Federalism is reflected in the decisions of U.S. v. New York (1992), U.S. v. Lopez (1995), U.S. v. Morrison (2000), and Printz v. U.S . (1992). The use of the Eleventh Amendment to uphold states’ rights is reflected in Seminole Tribe of Florida v. Florida (1996), Alden v. Maine (1999), and Federal Maritime Commission v South Carolina State Ports Authority (2002). Alden states: “[S]overeign immunity derives not from the Eleventh Amendment but from the structure of the original Constitution itself....Nor can we conclude that the specific Article I powers delegated to Congress necessarily include, by virtue of the Necessary and Proper Clause or otherwise, the incidental authority to subject the States to private suits as a means of achieving objectives otherwise within the scope of the enumerated powers .” Outside of the Commerce Clause, New Federalism can be seen in the majority opinion in Medellin v. U.S. (2008), concerning the applicability of international law to the states. In Medellin , the Court found that, without enabling legislation, states are not necessarily bound to international law even when the President orders states to comply. Essentially, the Medellin case deals not only with the preemption of states’ rights by the national government but also by international bodies!

Federalism – State and Center in U.S. Government – New Federalism The Enumerated Powers Act The “Enumerated Powers Act” would force Congress to cite its Constitutional authority for every law it passes. “ This government is acknowledged by all, to be one of enumerated powers. The principle, that it can exercise only the powers granted to it, would seem too apparent, to have required to be enforced by all those arguments, which its enlightened friends, while it was depending before the people, found it necessary to urge; that principle is now universally admitted” (Chief Justice Marshall in McCulloch v. Maryland 1819). See also Alden v. Maine (1999). It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country” (Justice Brandeis in New State Ice v. Liebman 1932).

Federalism – State and Center in U.S. Government Federalism – Pro and Con Arguments. Arguments supporting federalism state : Permits diversity Allows more opportunities for political participation Allows more access to government Provides better protection for individual rights Allows for experimentation and innovation in solving problems Arguments against federalism contend that : It masks economic or racial discrimination It allows special interests to exert strong influence It makes it difficult to achieve national unity Complexity raises costs and does not allow for efficiency 5. It allows for uneven law enforcement administration

Federalism Barron v Baltimore 32 U.S. 243 (1834) Facts: John Barron owned a profitable wharf in Baltimore harbor. The city dredged part of the harbor depositing sand near his wharf, which was detrimental to his business. Question: Is the Takings Clause of the Fifth Amendment applicable to the states? Findings: No. The Fifth Amendment is not applicable to the states, only to the federal government. States have their own laws concerning imminent domain and just compensation.

Federalism Missouri v. Holland 252 U.S. 416 (1920) Facts: Congress asked the State Dept. to negotiate a treaty with the United Kingdom (U.K.), protecting migratory birds whose annual migration between the U.S. and Canada crossed over several states. The Migratory Bird Treaty Act (1918), ratified by the Senate, required the federal government to regulate the hunting of migratory birds. The state of Missouri then sued the U.S. Game Warden, Ray Holland, as he attempted to enforce the law in Missouri. Question: Does the Treaty violate the Tenth Amendment? Finding: No. The state of Missouri argued that the birds, when they flew through Missouri, were the property of the state and thus subject to state regulation under the Tenth Amendment. The Court found that treaties, being national in scope, overrode state fears of abrogation and conflicting state laws via the Supremacy Clause (Article VI, section 2) of the Constitution. Conservatives see this case as an infringement on states’ rights as it essentially gives the federal government the right to abrogate state laws by international treaty. See the Bricker Amendment, an attempt to limit the use of federal treaty powers.

Federalism U.S. Term Limits, Inc. v. Thornton 514 U.S. 779 (1995) Facts: Amendment 73 to the Arkansas Constitution limited the terms in office of federal legislators to three terms for Representatives and two terms for Senators. Bobbie Hill, a member of the League of Women Voters sued arguing that the Amendment violated Article I, section II of the U.S. Constitution. The Arkansas Supreme Court agreed. Question: Can a state alter the terms of qualification as provided in Article I, section 2 of the U.S. Constitution? Finding: No. The majority opinion given by Justice Stevens argued that the Amendment would create a patchwork of state qualifications contrary to the intentions of the Framers to create a unified system of qualifications. Justice Thomas dissenting arguing that “the Constitution’s authority depends on the consent of the people of individual states not the consent of the undifferentiated people of the Nation as a whole.”

Federalism Printz v. U.S. 521 U.S. 898 (1997) Facts: The Brady Handgun Violence Prevention Act (Brady Bill) required the Attorney General to implement an instant background check system by November 30, 1998. A provision of the Act provided that during the interim, State Chief Law Enforcement Officers (CLEOs) would be required to perform the background check within five days and determine whether the transfer was lawful. CLEO Jay Printz, the Sheriff of Ravalli County Montana, filed a lawsuit arguing that Congress cannot compel state officers to execute federal law. Question: Does the Brady Bill’s interim provision requiring CLEOs to perform background checks violate the Tenth Amendment? Finding: Yes. Justice Scalia leaned heavily on dual federalism in his opinion. While Congress can regulate interstate commerce through the Executive, it cannot compel states to act through the Necessary and Proper Clause even temporarily. “Relevant constitutional practice tends to negate the existence of the congressional power asserted here, but is not conclusive. Enactments of the early Congresses seem to contain no evidence of an assumption that the Federal Government may command the States' executive power in the absence of a particularized constitutional authorization.” See also New York v. U.S . (1992).

Federalism : Article VI: Supremacy Clause - Federal Pre-emption of States “ This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

Federalism : Article VI: Supremacy Clause - Federal Pre-emption of States Cipollone v. Liggett Group, Inc. 505 U.S. 504 (1992) Facts: In 1964, the Surgeon General issued a warning that cigarette smoking causes cancer, and in 1965 Congress passed a law (15 USC 1331), which required warning labels, "WARNING: THE SURGEON GENERAL HAS DETERMINED THAT CIGARETTE SMOKING IS DANGEROUS TO YOUR HEALTH" , on all cigarette packages. In 1969 Congress revised the law to update the pre-emption provision in the original law. Under the 1969 Act, states are precluded from imposing any: "requirement or prohibition based on smoking and health...with respect to the advertising or promotion“ of cigarettes labeled in conformity with the statute's requirements (15 USC 1334(b)). In other words, states could not impose warning labels on cigarette packages given that the federal government pre-empted the states from doing so by law. Rose Cippollone smoked from the age of sixteen to her death at the age of fifty eight. After Mrs. Cippollone died in 1988 of lung cancer, her husband continued the lawsuit. The lawsuit was based on five supposed violations of state, New Jersey, tort (personal injury) laws by several cigarette manufacturers. “The fraudulent misrepresentation claims allege that respondents had willfully, "through their advertising, attempted to neutralize the [federally mandated] warnin[g]" labels, and that they had possessed, but had "ignored and failed to act upon," medical and scientific data indicating that "cigarettes were hazardous to the health of consumers" A federal appeals court ruled that the federal law pre-empted any state laws involving warning labels, etc.

Federalism : Article VI: Supremacy Clause - Federal Pre-emption of States Cipollone v. Liggett Group, Inc. 505 U.S. 504 (1992) Facts: "[T]he Act pre-empts those state law damage[s] actions relating to smoking and health that challenge either the adequacy of the warning on cigarette packages or the propriety of a party's actions with respect to the advertising and promotion of cigarettes. [W]here the success of a state law damage[s] claim necessarily depends on the assertion that a party bore the duty to provide a warning to consumers in addition to the warning Congress has required on cigarette packages, such claims are preempted as conflicting with the Act.” The appeals court did not, however, identify the specific claims that were preempted by the Act. The U.S. Supreme Court denied a petition for certiorari, and the case returned to the district court for retrial. Complying with the court of appeals mandate, the district court held that the failure-to-warn, express warranty, fraudulent-misrepresentation, and conspiracy-to-defraud claims were barred to the extent that they relied on the cigarette companies’ advertising, promotional, and public relations activities after January 1, 1966, the effective date of the 1965 Act. The district court also ruled that, while the design defect claims were not preempted by federal law, those claims were barred on other grounds. Following a four month trial, the jury awarded $400,000 in damages to Rose Cipollone's husband.

Facts: The district court rejected the fraudulent misrepresentation and conspiracy claims, but found that Liggett had breached its duty to warn and its express warranties before 1966. It found, however, that Rose Cipollone had "`voluntarily and unreasonably encountered a known danger by smoking cigarettes,'" and that eighty percent of the responsibility for her injuries was attributable to her. For that reason, no damages were awarded to her estate. However, the jury awarded damages to compensate her husband for losses caused by the cigarette companies’ breach of express warranty. Federalism : Article VI: Supremacy Clause - Federal Pre-emption of States Cipollone v. Liggett Group, Inc. 505 U.S. 504 (1992) Question: Do the federally prescribed warnings on cigarette packages pre-empt common law tort claims under state law against cigarette manufacturers?

Federalism : Article VI: Supremacy Clause - Federal Pre-emption of States Cipollone v. Liggett Group, Inc. 505 U.S. 504 (1992) Finding: No. The Court, in a 7-2 decision, found that some tort claims, conspiratorially deceptive advertising, made under state law are not necessarily pre-empted by federal laws and regulations. The Court distinguishes the types of tort claims: failure to warn about the health hazards of smoking cigarettes, under state law, is subject to federal pre-emption in contra to deceptive advertising. The Court will hear a similar case, Altria Group, Inc. v. Good , on October 7, 2008. The Good case differs from Cipollone in that Good is based on a statutory rather than a tort claim. Good argues that cigarette manufactures violated a Maine Unfair Trade Practices law through deceptive advertising. Some cigarettes are advertised as “light” meaning low in tar and nicotine, but Good argues that this is deceptive advertising because the cigarette companies know that smokers will “drag” longer on the cigarette and smoke more cigarettes to acquire more nicotine. Therefore, the smokers claim that the labeling, though complying by testing numerically with with federal law, actually is deceptive and that under state law they ought to be able to sue for deception. Pre-emption is a significant issue for the Roberts Court. The issue is simple--if the federal government, Congress, sets a policy, prohibiting the states from doing something , are the States prohibited from doing anything that relates to the product regulated by the federal government? We can think also of the safety of medical devices or drugs, both of which are or have been on the Court's agenda.

Federalism: Eleventh Amendment “ The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” The history of the Eleventh Amendment begins with a case called Chisholm v. Georgia (1793) in which the Supreme Court heard a case, over debts from the Revolutionary War, between citizens of the state of South Carolina and the state of Georgia. The outrage over the use of a federal court for civil lawsuits between citizens of one state and the government of another led to the Eleventh Amendment. After the Civil War, the Court expanded the Chisholm interpretation in Hans v. Louisiana (1890) to preclude suits against a state made by residents of the state in federal courts. Where Federalism had created a tension between state and federal sovereignty, the Eleventh Amendment had tried to resolve such tension in favor of the states. The result, however, was that states became virtually immune to federal law, since private parties could not sue. To avoid such problems, the Supreme Court eventually adopted a legal fiction called the “Stripping Doctrine”, in Ex parte Young (1908), which recognizes that private parties can sue state officers, but not the state itself, in their official capacity for injunctive relief. This was extended to preclude retroactive monetary damages in Edelman v. Jordan (1974). In Seminole Indian Tribe of Florida v. Florida (1996), the Court returned to a philosophy first articulated in the Hans case that the concept of Sovereign Immunity extends beyond the enumeration of the Eleventh Amendment, i.e. that sovereign immunity is actually rooted in Anglo common law. In Seminole Indian Tribe of Florida v. Florida (1996),

Federalism: Eleventh Amendment the Court indicated for the first time that Congress is without power under the “Indian” Commerce Clause to abrogate a state's sovereign immunity. In so doing, the Court overruled a 1989 decision that found such authority existed. According to the Court, only under the Fourteenth Amendment does the Congress have the power to abrogate state sovereign immunity. Justice Stevens dissented warned of the far-reaching consequences of the Court's decision, which he called "a shocking affront to a co-equal branch of government." The Court articulated the common law origin of Sovereign Immunity even further in Alden v. Maine (1999) when it precluded lawsuits in state courts over federal laws such as the Fair Labor Standards Act. Justice Kennedy stated: “[S]overeign immunity derives not from the Eleventh Amendment but from the structure of the original Constitution itself....Nor can we conclude that the specific Article I powers delegated to Congress necessarily include, by virtue of the Necessary and Proper Clause or otherwise, the incidental authority to subject the States to private suits as a means of achieving objectives otherwise within the scope of the enumerated powers.”

Seminole Indian Tribe of Florida v. Florida 517 U.S. 44 (1996) Facts: The Indian Gaming Regulatory Act (IGRA) (1988) was a law passed by Congress requiring states to negotiate with Indian tribes concerning gambling establishments. The law provided that Indian tribes could sue states in federal court for noncompliance or not negotiating in good faith. If that failed, then the matter would be referred to the Secretary of the Interior. Congress asserted its power to require a state to negotiate under the Commerce Clause in effect abrogating the sovereign immunity of states. The Eleventh Court of Appeals reversed the District Court upholding Florida’s argument that the Eleventh Amendment protects states from federal lawsuits. Question: Does Florida have immunity from the lawsuit under the Eleventh Amendment? Finding: In a 5-4 decision, the Court found that Congress did intend to abrogate states’ rights under the Eleventh Amendment through the “Indian” Commerce Clause. The Eleventh Amendment holds states sovereign by precluding federal lawsuits, against the states. The federal government may abrogate the states only through the Fourteenth Amendment (Due Process and Equal Protection). The dissenting opinions focus on the language of the Eleventh Amendment, as it states lawsuits by citizens of “other” states not citizens of the state involved. Federalism: Eleventh Amendment

Federalism – Grants Categorical grants – Federal grants to state and local governments that are earmarked for specific purposes or uses. Block grants – Federal grants to state and local governments that are allowed for broad uses. For example, a block grant for community development could be used to build a public golf course or a park. Revenue sharing – A program initiated by the Nixon administration in which federal tax revenues were allocated to states. The states retained complete discretion as to their use. Matching requirements – The federal government’s requirement that states and localities gather their own share of funds in some proportion to aid given. 5. Unfunded mandates – Federal laws that require states to meet regulatory standards, but provide no money to help the states comply.

Module 2: Civil Liberties & Civil Rights Objectives: Introduce the Bill of Rights Cover the basic structure of governmental powers Cover the basic structure of the judiciary Introduce the concept of “incorporation” Introduce the concept of “due process”

Constitutional Law : Civil Liberties & Civil Rights Governmental Powers and Federalism 1. Powers of the Federal Government : Article I: Legislature Article II: Executive Article III: Judiciary 2. Federalism Article IV: Full Faith and Credit and Privileges of Immunities Article V: Amendment Process Article VI: Federal Supremacy Amendment X: States’ Rights Amendment XI: State Sovereign Immunity Civil Liberties and Civil Rights Amendments One – Nine (Bill of Rights) : Speech Association Press Religion Arms/Weapons Search and Seizure Federal Due Process Self Incrimination Imminent Domain Trial Procedure Counsel Punishment Privacy Amendment Thirteen: Involuntary Servitude Amendment Fourteen: Citizenship, Due Process, Equal Protection Amendment Fifteen: Political Rights The Constitution can be divided broadly between

Civil Liberties: Judicial Review and the Path to the U.S. Supreme Court Judicial Review, held constitutional in Marbury v. Madison (1803), is the power to review the constitutionality of executive orders and federal and state laws. In other words, U.S. courts can question the constitutional standing of orders and laws issued and passed by the President, Governors, Congress, and State legislatures. In these cases, the Court(s) take direct action without following a defined path through various lower courts. In most democratic countries, judicial review by courts is not practiced. Instead, the constitutionality of legislation is determined by the legislature. Most cases work their way through state and federal courts. However, Habeas Corpus petitions are reviewed directly. U.S. Supreme Court Federal Appellate Courts Federal Courts* State Supreme Courts State Appellate Courts State (District) Courts*

Justices of the Supreme Court 2008

STRICT CONSTRUCTIONISM AND THE STRIKE ZONE by Douglas 0. Linder (c) 1987 This essay, originally published in the UMKC Law Review , was republished in Baseball and the American Legal Mind (Garland Publishing, 1995) "The Commissioner of Baseball was nearing the end of his long tenure, but there remained one major goal he wished to accomplish before leaving office. He wanted to make baseball a pitcher's game again. "If I see one more 13-10 game, I think I'll just ride my horse off into the sunset. It's really gotten out of hand, hasn't it? All this scoring, I mean? Isn't there something we can do about it?" The Commissioner's assistant thought for a while. "Why yes, maybe there is something," he said finally. "What's that?" asked the Commissioner. "I'll try anything." "The problem," said the assistant, "is not so much corked bats of lively balls or indoor stadiums-it's the umpires. The umpires are interpreting rules to favor hitters." "They are? Why would they do that?" "It began in the 1960's, that period of licentiousness and misplaced rebellion. Umpires began lowering the strike zone, inch by inch. Some people say that the strike zone was lowered to fit pitches. As this theory has it, when pitchers began throwing more low pitches, mostly sinkers and sliders, and fewer high pitches, down went the strike zone. Personally, I think it more likely pitchers started throwing pitches lower because the high pitches weren't being called strikes anymore. Umpires shrunk the strike zone to please fans who wanted more scoring.” "How could umpires lower the strike zone? Doesn't there have to be a change in the rules for that to happen?"

"You'd think so, wouldn't you, sir? Actually what happened was that umpires began making the strike zone, not interpreting it. The strike zone was the same as it always had been. The rulebook says that the strike zone extends from the batter's armpits to the top of his knees, over the width of the plate. That's what the rulebook says, but no umpire in the last twenty years has called a pitch crossing the plate as high as the batter's armpits a strike. The strike zone has moved lower, even though the rulebook remains unchanged. The strike zone now runs roughly from the batter's waist to the bottom of his knees." "You mean to tell me that our umpires are ignoring the clear language of the rulebook and the intentions of its framers?," asked an obviously incensed Commissioner. "Exactly," answered his assistant. "The umpires have made up their own strike zone and the result is clear for all to see: our national pastime has been transformed into a run-scoring circus." "Why, then, let's fire all the umpires!" "We can't, sir. Their contract, you know." "Yes, of course. Well, then, what can we do? Didn't you say you had an idea?" "There's this umpire named Bork working down in Triple A ball. He used to be a professor of Physical Education at a prestigious Eastern University. Bork wrote some scathing attacks on umpires back in his academic days. He espoused what I call 'strict constructionist' principles: an umpire's job is merely to interpret the rules, not change them. I like that Bork, he's not afraid to call that third strike, even when it's rib-high." "So he's doing a good job in the minors?" "I think so. Of course the batters disagree. And so do many of the fans. Bork presides over a remarkable number of 1-0 games, some involving fastball pitchers who not long ago were throwing the ball around sandlots. You see, batters have forgotten how to hit

high pitches. Batters like Ted Williams, who used to feast on fastballs above the waist, don't exist anymore. The lowered strike zone has produced a league full of pantywaist lowball hitters." "So we bring this fellow Bork up to the majors. Can he put an end to this runaway scoring and coddling of hitters?" "He may be able to do it. He's not just one umpire-he's a man of considerable intellectual force." Moving Bork to the majors wasn't accomplished without a fight. A lot of people liked the game as it was. "This Bork fellow is going to set the game back thirty years," one person objected. Finally, however, Bork got the job. Thousands of people who knew little about baseball came to Bork's defense. "Better to have Bork calling major league games than, say, sitting on the Supreme Court where he could have done some real damage," they argued. "Besides, since he'll be wearing a protective mask, no one has to look at his beard." Bork eventually took his place behind the plate in his first major league game. When a fastball whizzed over the plate, rib-high, Bork yelled, "Stiii-riiike One!" "Strike?" the batter asked, incredulous. "You've gotta be kidding! That ball was a foot above my waist." "Check the rulebook, Buddy. The strike zone goes up to your armpits." "Armpits? Armpits! No one calls pitches at the armpits strikes." "Someone does now."

In the locker room after the game, Bork was asked about his "new" strike zone. "It's not my strike zone and it's not new," he said. "It's the rulebook's and it's been around for decades. As long as the book says the strike zone extends to the armpits, that's the way I'll call it. If baseball wants the strike zone lowered, they can change the rule. But until they do, I'll apply the rule as it was written, and as it was interpreted until umpires in the 1960's began thinking that their own notion of what a strike zone should be was better than the books." If Bork was the only umpire in the major leagues calling high strikes, perhaps the game wouldn't have changed much. After all, pitchers had been trained to throw low pitches, and they probably wouldn't change their pitching styles just for one umpire. But Bork's argument had its effect. A number of other umpires began to question whether it was legitimate for them to ignore the language of the rulebook and the clear intentions of the rulebook's framers. Too many pitchers were getting the rib-high strike. Pitchers began adding high pitches to their sinker-slider games. Batting averages dropped. Run production plummeted. Fans began to complain. "Baseball is getting boring," they said. "Who wants to watch a bunch of batters swatting air?" Support began to grow for a rule which would lower the strike zone. When the old Commissioner of Baseball retired he was replaced by a Commissioner anxious to satisfy the growing number of fans demanding that baseball become "exciting again." The new Commissioner appointed a rule revision committee. Many meetings later a rule change was proposed: the strike zone should extend from the waist to the knees. It did not go unnoticed that the new strike zone was precisely where the old strike zone had been in fact, if not in law, before umpire Bork began applying his strict constructionist principles.

Once the new rule was adopted, the game began to change back into what it was before the day Bork arrived behind the plate. Baseball again became a game of sinker-slider pitchers, lowbar hitters, and moderate-to-high run production. Fans were happy again. Only the pitchers, and a few oldtimers who still remembered Ted Williams, grumbled. Umpire Bork is still calling balls and strikes. Pitches above the waist no longer get his right hand now: he applies the new rule as it is written. Privately, he complains that the game is weighed too heavily in favor of the hitters. Old men on porches still talk about the early days of Bork's umpiring career. "Those were interesting times-all that debate about where the strike zone should be. Some umpires following Bork's strict constructionist views, and others sticking to the zone that had evolved during the sixties. No one knew where the strike zone would be on any given night-whether to expect a 10-9 game or a 2-0 game." Umpire Bork believes baseball is better now for having a strike zone that matches the rulebook's. A lot of other people wonder what difference it all makes. "Everybody knew where the strike zone was before he came along, so who cares what the rulebook said?" they argue. It matters to Umpire Bork, who says that without a guiding principle of fidelity to the rulebook, an umpire might begin calling eyeball-high pitches, or pitches rolled across the plate on the ground, or even pitches thrown behind the batter, strikes.

Other baseball philosophers scoff at Bork's suggestion. "Umpires understand the value of consistency," they say. "This business about umpires calling eyeball-high pitches strikes is baloney. Just because an umpire isn't a strict constructionist doesn't mean that he'll call a strike whenever the urge hits him. Umpires are constrained by peer pressure, by fear of ridicule, and by their own love for the integrity of the game. When the strike zone was lowered in the sixties, it wasn't lowered because the umpires said, 'Hey, just for kicks, let's lower the strike zone!' It was lowered in response to various demands of the game and, primarily, the demands of the fans. Baseball was better for the change, which took place more gradually and with less disruption than it ever could have had we depended upon rules committees to revise the strike zone downward an inch or two a year." Judge Robert Bork

Article III: Sections 1 & 2: Federal Judicial Powers The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign State Citizens. In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Article III: Judiciary – Judicial Review Marbury v Madison 5 U.S. 137 (1803) Facts: John Adams appointed William Marbury to a minor judgeship as a last minute appointee. However, the papers while signed were not delivered. Marbury along with several other appointees cited the 1789 Judiciary Act and sued for their appointment. Question: Is Marbury entitled to receive his appointment and what is the appropriate means for settling the dispute? Findings: Yes, this case established the concept of judicial review; whereby, the U.S. Supreme Court, or any U.S. court, can rule on the constitutionality of legislation and executive orders.

Article III: Judiciary – Standing: “Political Questions” Baker v. Carr 369 U.S. 186 (1962) Facts: Charles Baker, a resident of Shelby County, Tennessee filed suit against Tom Carr, the Secretary of State, ex officio, arguing that malapportionment of state legislative districts in TN violated his equal protection right under the Fourteenth Amendment. The state had not reapportioned its legislative districts since 1901 leaving rural districts of the state better represented than urban districts. Question: Is legislative apportionment a “political question” precluding the Supreme Court’s jurisdiction over it? Finding: No. The Court could interpret the constitutionality of states’ apportionment legislation without interfering with the state legislatures’ political judgments. In a dissenting opinion, Justice John Harlan II argued that the federal (implied) Equal Protection Clause of the Fifth Amendment does not prevent a state “from choosing any electoral legislative structure it thinks best suited to the interests, temper, and customs of its people.” If a State chose to “distribute electoral strength among geographical units, rather than according to a census of population,” he wrote, that choice “is…a rational decision of policy…entitled to equal respect from this Court.” See also Reynolds v. Sims (1964).

Article III: Judiciary – Jurisdiction Rasul v. Bush 542 U.S. 466 (2004) Facts: Shafik Rasul, a citizen of the U.K., was captured in Afghanistan by The Northern Alliance in 2001 and transferred to the U.S. base in Guantanamo Bay, Cuba. Rasul and other detainees were held as Enemy Combatants and denied rights to counsel and trial and held without charges. The D.C. District Court dismissed the cases with prejudice on the grounds that Guantanamo Bay was not within the sovereign jurisdiction of the U.S. Rasul was released without charges in April 2004 and returned to the U.K. prior to the hearing of the case before the U.S. Supreme Court. Question: Does the Court have jurisdiction over Guantanamo Bay given that the governing treaty states that Cuba has “ultimate sovereignty?” Do the detainees, held as Enemy Combatants and not as Prisoners of War or criminals, have habeas corpus rights? Finding: Yes and Yes. The Court has jurisdiction. Justice Stevens, citing English Common Law, found that habeas corpus right existed in “all dominions under the sovereign’s control.” And, that the U.S. control over Guantanamo Bay was sufficient. Stevens also found that citizenship was not a requirement for the exercise of habeas corpus. See also Hamdi v. Rumsfeld (2004) and Hamdan v. Rumsfeld (2006) and Boumediene v. Bush (2008).

Civil Liberties: Judiciary - Authority Federal courts have the authority to hear cases arising from the following: Cases arising from the Constitution or a federal statute Cases of admiralty Cases between two or more states Cases between citizens of different states Cases between a state or its citizens and a foreign country or foreign citizen Congress has the power to decide the types of cases the federal courts can hear, so long as it does not expand the courts’ jurisdiction beyond the federal powers enumerated in Article III, section 2. Most cases are heard through Writ of Certiorari in which the Court has discretion to hear an appeal. The Court is also required to hear appeals when the decision was made by a en-banc federal district court.

Civil Liberties: Judiciary - Standing In order for a federal court to hear a case certain requirements must be met. Standing means a plaintiff has a significant stake in the litigation: Actual of imminent injury Causation and redressability Prohibition of taxpayer based suits No Third Party Standing – A person may not assert the rights of another person. Ripeness – As an example, a party may not challenge a proposed law. Mootness – The controversy must exist at all times during the litigation. See Arizonians for Official English v. Arizona (1998). Not a political question – The Court will not hear cases that are better left to the executive or legislature. See Carter v. Goldwater (1979) and Baker v. Carr (1962). 8. Suits against states in federal courts for damages under the Eleventh Amendment. See Seminole Indian Tribe of Florida v. Florida (1996).

Civil Liberties : Incorporation of Rights Debates over jurisdiction (federalism) have always been a major source of contention in American government. The Civil War (1861 – 1864) was essentially fought over the scope and degree of federalism as understood in the Tenth Amendment. The Southern states argued their right to regulate property included slaves. See Dred Scott v. Sanford (1856). After the Civil War, the Fourteenth Amendment was passed to rescind the degree of autonomy the states had previously possessed. The goal of the Fourteenth Amendment was to ensure that states would follow the Bill of Rights, particularly the Fifth Amendment, which concerns “due process.” However, the reality has been that states have been reluctant to follow the Bill of Rights. From the 1880s until the late 1930s, the Supreme Court affirmed many of the states and individuals’ “traditional” rights by rejecting the federal government’s attempt to regulate labor. The process of getting the states to follow the Bill of Rights is called “incorporation” Incorporation is almost complete today with the exception of the Second Amendment. This means that states have to respect fundamental rights such as free speech, search and seizure, etc.

Civil Liberties : The Fourteenth Amendment and Incorporation The Fourteenth Amendment is the primary vehicle through which civil liberties arguments are made. There are three parts to the Fourteenth Amendment. Citizenship – All persons born within the territory of the U.S. are citizens. Due Process – Fundamental fairness in the judicial process Equal Protection – States cannot employ arbitrary criteria based on ethnicity, race, etc. "Substantive Due Process" is the fundamental constitutional legal theory upon which the privacy right is based. The doctrine of Substantive Due Process holds that the Due Process Clause not only requires "due process," that is, basic procedural rights, but that it also protects basic substantive rights. "Substantive" rights are those general rights that reserve to the individual the power to possess or to do certain things, despite the government’s desire to the contrary. These are rights like freedom of speech and religion. "Procedural" rights are special rights that, instead, dictate how the government can lawfully go about taking away a person’s freedom or property or life, when the law otherwise gives them the power to do so.

Civil Liberties : Substantive Due Process The Due Process Clause of the Fourteenth Amendment, adopted in 1868, states "nor shall any State deprive any person of life, liberty, or property, without due process of law . . . " The facially clear meaning of this passage is that a state has to use sufficiently fair and just legal procedures whenever it is going to lawfully take away a persons life, freedom or possessions. Thus, before a man can be executed, imprisoned or fined for a crime, he must get a fair trial, based on legitimate evidence, with a jury, etc. These are procedural or "process" rights. However, under "Substantive Due Process," the Supreme Court has developed a broader interpretation of the Clause, one that protects basic substantive rights, as well as the right to process . Substantive Due Process holds is that the Due Process Clauses of the Fifth and Fourteenth Amendments guarantee not only that appropriate and just procedures (or "processes") be used whenever the government is punishing a person or otherwise taking away a person’s life, freedom or property, but that these clauses also guarantee that a person’s life, freedom and property cannot be taken without appropriate governmental justification, regardless of the procedures used to do the taking . In a sense, it makes the "Due Process" clause a "Due Substance" clause as well.

Civil Liberties : Substantive Due Process - Critiques Critics of Substantive Due Process claim that it is not the laws it strikes down, but rather the theory itself which is "unconstitutional." They claim that it is a pure usurpation of power by the Court since they Court can’t use Judicial Review to strike down a state law unless the law is really contrary to the Constitution. Critics claim that "Substantive Due Process" is an oxymoron and that there is no way a reasonable person with a sixth grade grasp of grammar could read the "Due Process" Clause to assure anything but procedural rights. They say that when the Court uses judicial review to enforce these pseudo -Constitutional rights they are stealing the legitimate law-making power from the state legislatures. See the Enumerated Powers Act. Supporters of Substantive Due Process, on the other hand, point to its long history and its dynamic ability to defend basic human rights from infringement by the government. They argue that Substantive Due Process provides comprehensive nation-wide protection for all our most cherished rights, which might otherwise be at the mercy of state governments. They argue that the doctrine is a simple recognition that no procedure can be just if it is being used to unjustly deprive a person of his basic human liberties and that the Due Process Clause was intentionally written in broad terms to give the Court flexibility in interpreting it. The Rehnquist Court severely weakened the use of substantive due process in Graham v. O’Connor (1989).

Civil Liberties : Fourteenth Amendment The Slaughterhouse Cases 83 U.S. 36 (1873) Facts: The Louisiana legislature passed a law allowing the City of New Orleans to form a semi-monopoly of the slaughtering business. Butchers and others involved in the processing of cattle and other animals sued the state arguing that the law violated their Thirteenth and Fourteenth Amendment rights notably: Equal Protection, Privileges or Immunities, and Due Process. Question: Does the establishment of the semi-monopoly violate the butchers’ Thirteenth and Fourteenth Amendment rights? Finding: No. The Court found that the Equal Protection Clause applied only to discrimination against blacks. The Court centered its finding on the role of the Privileges or Immunities Clause. The Privileges or Immunities Clause applied only to the federal government; thus, the creation of a corporation to monopolize animal processing falls under the state’s police powers. This case effectively killed the use of the Privileges or Immunities Clause as a constitutional argument. In later civil rights case, the use of Substantive Due Process would replace it.

Module 2: Civil Liberties - First Amendment – Speech Objectives: The First Amendment is extensive, but what makes its interesting is its colorful, albeit, contemporary interpretation. It may seem a bit overwhelming at first, but you will soon notice that the same concepts are reiterated in different cases. A good example of this is concern with security as witnessed through the use of concepts like “Clear and Present Danger” and “Imminent Lawless Action.” Stress the contemporary, Twentieth Century, interpretation of the First Amendment Understand the movement of power away from the states through study of the First Amendment Understand the evolution of individual rights in the United States Learn the breakdown of the First Amendment into its components Learn the development and evolution of “tests” such as “Clear and Present Danger” Discuss the most significant First Amendment cases 7. Discuss the relationship of the First Amendment to contemporary issues

Civil Liberties : First Amendment – Speech Freedom of Speech is not specifically defined in the Constitution. The U.S. Supreme Court has interpreted the meaning of free speech through its decisions. These cases build a body of law, called precedent or “stare decisis,” which is used to make arguments for or against speech as well as other rights. The first incorporation cases were based on free speech. These cases involved the limitations of free speech in relation to “national security”, i.e. sedition, avoiding conscription, etc. Keep in mind that federal and state governments could exert tremendous control if speech could be found to be harmful to national security. First Amendment “ Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Civil Liberties : First Amendment - Speech Facts: During World War I, Schenck, the Secretary of the Socialist Party, mailed propaganda pamphlets to draftees. The pamphlets suggested that the draft was undemocratic. The circulars urged "Do not submit to intimidation" but advised only peaceful action. Schenck was charged with conspiracy to violate the 1917 Espionage Act by attempting to cause insubordination in the military and to obstruct recruitment. Question: Are Schenck's words expressions protected by the Free Speech Clause of the First Amendment? Findings: Chief Justice Holmes concluded that Schenck’s speech is not protected in this situation. The character of every act depends on the circumstances. "The question in every case is whether the words used are 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." During wartime, what might be tolerable in peacetime can be punished. See also Debs v. U.S . (1919). Schenck v. United States 249 U.S. 47 (1919) Eugene Debs

Civil Liberties : First Amendment - Speech Gitlow v. New York 268 U.S. 652 (1925) Facts: Gitlow, a socialist, was arrested for distributing copies of a “communist manifesto" that called for the establishment of communism through civil disobedience and strikes. Gitlow was convicted under a state anarchy law, which punished advocating the overthrow of the government by force. At his trial, Gitlow argued that since there was no resulting action resulting from the publication, the statute penalized speech without propensity to incitement of concrete action. The New York courts had decided that anyone who advocated the doctrine of anarchy violated the law. Question: Does the New York law punishing the advocacy of overthrowing the government, i.e. anarchy present unconstitutional violation of the Free Speech Clause? Findings: Does the First Amendment apply to the states? Yes, by virtue of the liberty protected by due process that no state shall deny (14th Amendment). A state can prohibit both speech and publication if they have a tendency to result in action dangerous to public security, even though the speech may create no clear and present danger . This reasoning is generally referred to as the "dangerous tendency" test. The legislature may decide that an entire class of speech is so dangerous that it should be prohibited. Those legislative decisions will be upheld if not unreasonable, and the defendant will be punished even if her speech created no danger at all.

Civil Liberties : 1 st Amendment - Speech Dennis v. United States 341 U.S. 494 (1951) Facts: In 1948, leaders of the Communist Party of America were arrested and charged with violating provisions of the Smith Act. The Smith Act made it unlawful to knowingly conspire to teach and advocate the overthrow or destruction of the United States government. Party leaders were found guilty and lower courts upheld their convictions. Question: Did the Smith Act's restrictions on speech violate the First Amendment? Findings: The Court upheld the convictions of the Communist Party leaders and found that the Smith Act did not violate the First Amendment. The Court held that there was a distinction between the teaching of communist ideals and active advocacy of those ideas. Such advocacy created a “Clear and Present Danger" that threatened the government. Given the gravity of the consequences of an attempted putsch, the Court held that success or probability of success was not necessary to justify restrictions on the freedom of speech!

Civil Liberties : First Amendment - Speech Brandenburg v. Ohio 395 U.S. 444 (1969) Facts: Brandenburg, a Ku Klux Klan leader, made a speech at a Klan rally and was later convicted under an Ohio criminal syndicalism law. The law made illegal advocating "crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform," as well as assembling "with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism." Question: Did Ohio's criminal syndicalism law, prohibiting public speech that advocates various illegal activities, violate Brandenburg's right to free speech as protected by the First and Fourteenth Amendments? Findings: Yes. The Court's per curiam opinion held that the Ohio law violated Brandenburg's right to free speech. The Court used a test to evaluate speech acts: speech can be prohibited if it is directed at inciting or producing “imminent lawless action.” The criminal syndicalism act made illegal the advocacy and teaching of doctrines while ignoring whether or not that advocacy and teaching would actually incite imminent lawless action. The failure to make this distinction rendered the law overly broad and in violation of the Constitution. As of 2007, the Brandenburg test is still the standard using for evaluating attempts to punish inflammatory speech.

Civil Liberties : First Amendment - Speech Haig v. Agee 453 U.S. 280 (1981) Facts: In 1974, Philip Agee, a former Central Intelligence Agency operative, announced a campaign "to fight the United States CIA wherever it is operating." Agee then exposed a number of CIA agents and sources working in other countries. Secretary of State Alexander Haig revoked Agee's passport, and Agee filed suit claiming that Haig required congressional approval to do so. Agee claimed that the action violated his Fifth Amendment “liberty”, right to travel, and due process rights and his First Amendment right to criticize the government. Question: Did the President, acting through the Secretary of State, have the constitutional authority to revoke the passport? Findings: Yes. The Court held that Passport Act of 1926 and other congressional statutes implicitly granted the Secretary of State the power to revoke passports. The Court noted Congress's historical recognition of "Executive authority to withhold passports on the basis of substantial reasons of national security and foreign policy." The Court further held that because the regulations were limited to cases in which there was a likelihood of "serious damage" to foreign policy, Agee's claims concerning the First Amendment, the Fifth Amendment, and the right to travel were "without merit."

Civil Liberties : First Amendment - Speech Chaplinsky v New Hampshire 315 U.S. 568 (1941) Facts: Chaplinsky, a Jehovah’s Witness, was distributing denominational literature when he was questioned by a town marshal. He then called the town marshal a “goddamned racketeer” and “a damned, jackbooted fascist” He was consequently arrested and convicted for violating the peace. Question: Is this a violation of Chaplinski’s freedom of speech? Findings: No. Not all forms of speech are protected. In this case, the Court found that Chaplinsky’s speech did not convey ideas. Instead, Chaplinski’s speech was intended to incite violence, i.e. it constituted “fighting words.”

Civil Liberties : First Amendment – Symbolic Speech United States v. O'Brien 391 U.S. 367 (1968) Facts: David O'Brien burned his draft card in front of a Boston courthouse. He said he was expressing his opposition to the Vietnam war. He was convicted under a federal law, the Universal Military Training and Service Act, that made the destruction or drafts card a crime. Question: Was the law a violation of O'Brien's freedom of speech? Findings: No. The 7-to-1 majority, speaking through Chief Justice Earl Warren, established a test to determine whether governmental regulation involving symbolic speech was justified. The formula examines whether the regulation is unrelated to content and narrowly tailored to achieve the government's interest. "We think it clear," wrote Warren," that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidential restriction on alleged First Amendment freedoms is not greater than is essential to the furtherance of that interest.“The 1965 Law came within Congress' "broad and sweeping" power to raise and support armies and make all laws necessary to that end.”

Civil Liberties : First Amendment – Symbolic Speech Texas v. Johnson 491 U.S. 397 (1989) Facts: In 1984, At the Republican Party’s National Convention, in front of the Dallas City Hall, Gregory Lee Joey “Three Guns” Johnson, a Maoist Communist, burned an American flag as a means of protest against the Reagan administration’s policies in Central America. Johnson was convicted under a Texas law outlawing flag desecration. He was sentenced to one year in jail and assessed a $2,000 fine. The Texas Court of Criminal Appeals reversed the conviction, and the case went to the Supreme Court. Question: Is the destruction of a U.S. flag a form of speech that is protected under the First Amendment? Gregory L. Joey “Three Guns” Johnson

Findings: In a 5-4 decision, the Court held that Johnson's burning of a flag was protected expression under the First Amendment . The Court found that Johnson's actions fell into the category of expressive conduct and had a distinctively political nature . The fact that an audience takes offense to certain ideas or expression, the Court found, does not justify prohibitions of speech . The Court also held that state officials did not have the authority to designate symbols to be used to communicate only limited sets of messages, noting that "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 ." Civil Liberties : First Amendment – Symbolic Speech Texas v. Johnson 491 U.S. 397 (1989)

Civil Liberties : First Amendment – Symbolic Speech Bethel School District #403 v. Frasier 478 U.S. 675 (1986) Facts: At a school assembly Matthew Fraser made a speech nominating a fellow student for office. In his speech, Fraser used what some observers believed was a graphic sexual metaphor to promote the candidacy of his friend. As part of its disciplinary code, Bethel High School enforced a rule prohibiting conduct which "substantially interferes with the educational process . . . including the use of obscene, profane language or gestures." Fraser was suspended from school for two days. Question: Does the First Amendment prevent a school district from disciplining a high school student for giving a lewd speech at a high school assembly? Findings: No. The Court found that it was appropriate for the school to prohibit the use of vulgar and offensive language. Chief Justice Burger distinguished between political speech which the Court previously had protected in Tinker v. Des Moines Independent Community School District (1969) and the supposed sexual content of Fraser's message at the assembly. Burger concluded that the First Amendment did not prohibit schools from prohibiting vulgar and lewd speech since such discourse was inconsistent with the "fundamental values of public school education."

Civil Liberties : First Amendment – Symbolic Speech "I know a man who is firm - he's firm in his pants, he's firm in his shirt, his character is firm - but most [of] all, his belief in you the students of Bethel, is firm. Jeff Kuhlman is a man who takes his point and pounds it in. If necessary, he'll take an issue and nail it to the wall. He doesn't attack things in spurts - he drives hard, pushing and pushing until finally - he succeeds. Jeff is a man who will go to the very end - even the climax, for each and every one of you. So please vote for Jeff Kuhlman, as he'll never come between us and the best our school can be [long pause after the word "come" on oral delivery, but no comma in the written version, according to Matthew N Fraser]" Bethel School District #403 v. Frasier 478 U.S. 675 (1986)

Buckley v. Valeo 442 U.S. 1 (1976) Facts: After Watergate, Congress passed laws concerning campaign financing designed to reduce perceived corruption. The Federal Elections Commission was created. Question: Did the limitations placed on contributions through the Campaign Act of 1971 violate the right of free speech? Findings: No. Individual contributions to candidates can be capped. A candidate may however spend as much of her own money as she desires. Political Action Committee (PAC) contributions to candidates are protected as free speech. Civil Liberties : First Amendment – Speech Misc.

Civil Liberties : First Amendment - Association Freedom of Association: History The First Amendment does not specifically mention the right of association. The concept can be understood to have grown out of the First Amendment's guarantee of a right to peaceably assemble and petition the government. To petition the government effectively one might join others who have the same grievances. This liberty, then, was conceived to protect an association of people to achieve some lawful political end. Judicial recognition of the right association in the United States is relatively recent. The U.S. Supreme Court recognized a constitutionally protected right of association as a means of guaranteeing the rights of individuals who protested during the civil rights movement. Frank Collins, leader of the NSPA

Civil Liberties : First Amendment – Association Hague, et al. v. CIO 307 U.S. 496 (1939) Facts: The CIO challenged a Jersey City, NJ, ordinance requiring a permit for all meetings in public places. Mayor Frank "I Am The Law" Hague, used the ordinance to stifle labor union organizers. Hague based his action on the 1897 Supreme Court ruling in Davis v. Massachusetts , the Boston Common case, which, he argued, gave the city absolute discretion over the use of public places. The district and circuit courts ruled in favor of the CIO, and Hague appealed to the U.S. Supreme Court. Question: Does it violate the First Amendment when a city prohibits expression in public places? Findings: Streets, parks, and other similar public places belong to the citizens. Expression of ideas in public places may be regulated through the use of non-discriminatory, content-neutral, time, place, and manner regulations--but expression cannot be prohibited. Mayor Frank Hague

Civil Liberties : First Amendment - Association City of Skokie v. National Socialist Party of America 432 U.S. 43 (1977) Facts: The Illinois Supreme Court denied a stay of the Trial Court's injunction prohibiting petitioners from marching, walking, or parading in the uniform of the National Socialist Party of America or otherwise displaying the swastika, and from distributing pamphlets or displaying materials inciting or promoting hatred against Jews or persons of any faith, ancestry, or race, and also denied leave for an expedited appeal. Finding: The Illinois Supreme Court's order is a final judgment for purposes of this Court's jurisdiction, since it finally determined the merits of petitioners' claim that the injunction will deprive them of First Amendment rights during the period of appellate review. 2. The State must allow a stay where procedural safeguards, including immediate appellate review, are not provided, and the Illinois Supreme Court's order denied this right Question: Is the Trial Court’s injunction prohibiting the expression of the NSPA’s views a violation of the First and Fourteenth Amendments?

Civil Liberties : First Amendment - Association Hurley v. Irish American Gay, Lesbian, and Bisexual Association 515 U.S. 557 (1995) Facts: In 1993, the South Boston Allied War Veterans Council was authorized by the city of Boston to organize the St. Patrick's Day Parade. The Council refused a place in the event for the Irish American Gay, Lesbian, and Bisexual Group of Boston (GLIB). The group attempted to join to express its members' pride in their Irish heritage as openly gay, lesbian, and bisexual individuals. The Massachusetts State Court ordered the Veterans' Council to include GLIB under a state law prohibiting discrimination on account of sexual orientation in public accommodations. The Veterans' Council claimed that forced inclusion of GLIB members in their privately-organized parade violated their free speech. Question: Did a Massachusetts state court's mandate to Boston's Veterans' Council, requiring it to include GLIB members in its parade, violate the Council's free speech rights as protected by the First and Fourteenth Amendments? Findings: Yes. A unanimous Court held that the state court's ruling to require private citizens who organize a parade to include a group expressing a message that the organizers do not wish to convey violates the First Amendment by making private speech to the public accommodation requirement. Such an action "violate[s] the fundamental First Amendment rule that a speaker has the autonomy to choose the content of his own message and, conversely, to decide what not to say."

Civil Liberties : First Amendment - Association Facts: The Boy Scouts of America revoked former Eagle Scout and assistant scoutmaster James Dale's adult membership when the organization discovered that Dale was a homosexual and a gay rights activist. In 1992, Dale filed suit against the Boy Scouts, alleging that the Boy Scouts had violated the New Jersey statute prohibiting discrimination on the basis of sexual orientation in places of public accommodation. The Boy Scouts, a private, nonprofit organization, asserted that homosexual conduct was inconsistent with the values it was attempting to instill in young people. The New Jersey Superior Court held that New Jersey's public accommodations law was inapplicable because the Boy Scouts was not a place of public accommodation. The court also concluded that the Boy Scouts' First Amendment freedom of expressive association prevented the government from forcing the Boy Scouts to accept Dale as an adult leader. The Appellate Court held that New Jersey's public accommodations law applied to the Boy Scouts because of its broad-based membership solicitation and its connections with various public entities, and that the Boy Scouts violated it by revoking Dale's membership based on his homosexuality. The court rejected the Boy Scouts' federal constitutional claims. The New Jersey Supreme Court affirmed. The court held that application of New Jersey's public accommodations law did not violate the Boy Scouts' First Amendment right of expressive association because Dale's inclusion would not significantly affect members' abilities to carry out their purpose. Furthermore, the court concluded that reinstating Dale did not compel the Boy Scouts to express any message. Boy Scouts of America v. Dale 530 U.S. 640 (2000)

Civil Liberties : First Amendment - Association Question: Does the application of New Jersey's public accommodations law violate the Boy Scouts' First Amendment right of expressive association to bar homosexuals from serving as troop leaders? Findings: Yes. The Court held, in a 5-4 decision, that "applying New Jersey's public accommodations law to require the Boy Scouts to admit Dale violates the Boy Scouts' First Amendment right of expressive association." In effect, the ruling gives the Boy Scouts of America a constitutional right to bar homosexuals from serving as troop leaders. Chief Justice Rehnquist wrote for the Court that, "[t]he Boy Scouts asserts that homosexual conduct is inconsistent with the values it seeks to instill," and that a gay troop leader's presence "would, at the very least, force the organization to send a message, both to the young members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior."

Roberts v. United States Jaycees 468 U.S. 609 (1984) Facts: The U.S. Jaycees limited full membership to males between the age of eighteen and thirty five. Females and males over the age of thirty five were allowed associate membership without voting privileges. Two Minnesota Jaycees chapters admitted women as full members prompting the national association to revoke the chapters’ membership. The Minnesota chapters then filed a lawsuit against the national association on the accusation of violating a Minnesota anti-discrimination law. When Katherine Roberts, the administrator of the Minnesota Dept. of Human Rights attempted to enforce the law, the national chapter sued the state of Minnesota. Question: Did Minnesota’s enforcement of its anti-discrimination law violate the U.S. Jaycee’s First Amendment right of association? Findings: No. In a unanimous decision, the Court held that the Jaycees chapters lacked "the distinctive characteristics that might afford constitutional protection to the decision of its members to exclude women." The Court found that giving women full membership would not impose any serious burdens on the male members' freedom of association. The Court held that Minnesota's compelling interest in eradicating discrimination against women justified enforcement of the state anti-discrimination law. Civil Liberties : First Amendment - Association

Civil Liberties : First Amendment - Association R.A.V. v. St. Paul 505 377 (1992) Facts: Several teenagers allegedly burned a crudely fashioned cross on a black family's lawn. The police charged one of the teens under a local bias-motivated criminal ordinance which prohibits the display of a symbol which "arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender." The trial court dismissed this charge. The state supreme court reversed. R.A.V. appealed to the U.S. Supreme Court. Question: Is the ordinance overly broad and impermissibly content-based in violation of the First Amendment free speech clause? Findings: Yes. In a 9-to-0 vote, the justices held the ordinance invalid on its face because "it prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses." The First Amendment prevents government from punishing speech and expressive conduct because it disapproves of the ideas expressed. Under the ordinance, for example, one could hold up a sign declaring all anti-semites are motherfuckers but not that all Jews are motherfuckers. Government has no authority "to license one side of a debate to fight freestyle, while requiring the other to follow the Marquis of Queensbury Rules." Robert Victoria

Civil Liberties : First Amendment - Association Virginia v. Black, et al. 538 U.S. 343 (2003)

Civil Liberties : First Amendment – Association Facts: On the evening of October 7, 1989, Mitchell and a group of young black men attacked and severely beat a lone white boy. The group had just finished watching the film Mississippi Burning , in which a young black boy was, while praying, beaten by a white man. After the film, the group moved outside and Mitchell asked if they “[f]elt hyped up to move on some white people.” When the white boy approached Mitchell said, “Y’all wanna fuck somebody up? There goes a white boy. Go get him.” The boy was left unconscious, and remained in a coma for four days. Mitchell was convicted of aggravated battery, which carries a two year maximum sentence. The Wisconsin jury, however, found that because Mitchell selected his victim based on race, the penalty enhancement law allowed Mitchell to be sentenced to up to seven years . The jury sentenced Mitchell to four years, twice the maximum for the crime he committed without the penalty enhancement law . Wisconsin v. Mitchell 508 U.S. 476 (1993) Question: Does the State law violate the defendant’s First Amendment rights to free speech and association ?

Civil Liberties : First Amendment - Association Conclusion: the Court rejected the defendant's argument that the enhancement law penalized thought. First, the Court affirmed that the law (statute) was directed at a defendant's conduct -- committing a crime . The Court then held that, because the bias motivation would have to be connected with a specific act, there was little risk that the statute would chill protected bigoted speech. The statute focused not on the defendant's bigoted ideas, but rather on his actions based upon those ideas . Finally, the Court made clear that "the First Amendment . . . does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or intent." After Mitchell, challenges to penalty-enhancement statutes on the basis of the First Amendment to the United States Constitution appear to be largely foreclosed. Wisconsin v. Mitchell 508 U.S. 476 (1993 )

Civil Liberties : First Amendment - Press Near v. Minnesota 283 U.S. 697 (1931) Facts: 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 nuisance. Question: Does the Minnesota "gag law" violate the free press provision of the First Amendment? Findings: The Supreme Court held that the statute authorizing the injunction was unconstitutional as applied. History had shown that the protection against previous restraints was at the heart of the First Amendment. The Court held that the statutory scheme constituted a prior restraint and hence was invalid under the First Amendment. Thus the Court established as a constitutional principle the doctrine that, with some narrow exceptions, the government could not censor or otherwise prohibit a publication in advance, even though the communication might be punishable after publication in a criminal or other proceeding.

Civil Liberties : First Amendment - Press New York Times v. U.S. 403 U.S. 713 (1971) Facts: This case is generally referred to as the Pentagon Papers Case . The Nixon Administration attempted to prevent the New York Times and Washington Post from publishing documents belonging to a classified Defense Department study regarding the history of United States activities in Vietnam. The President argued that prior restraint was necessary to protect national security. Question: Did the Nixon administration's efforts to stop the publication of "classified information" violate the First Amendment? Findings: Yes. The Court held that the government did not overcome the "heavy presumption against" prior restraint of the press in this case. Justices Black and Douglas argued that the word "security“ was ambiguous and should not be used "to abrogate the fundamental law embodied in the First Amendment." Justice Brennan reasoned that since publication would not cause an inevitable, direct, and immediate event imperiling the safety of American forces, prior restraint was unjustified.

Civil Liberties : First Amendment - Press “ To the ordinary guy, all this is a bunch of gobbledygook. But out of the gobbledygook comes a very clear thing: you can't trust the government; you can't believe what they say; and you can't rely on their judgment. And the implicit infallibility of presidents, which has been an accepted thing in America, is badly hurt by this, because it shows that people do things the President wants to do even though it's wrong, and the President can be wrong.” H.R. Hadleman describing the impact of the paper’s release to President Nixon, June 14, 1971. New York Times v. U.S. (1971) In one of Nixon's actions against Ellsberg, G. Gordon Liddy and E. Howard Hunt, members of the White House Special Investigation Unit (also called the "White House Plumbers") broke into Ellsberg's psychiatrist's office in September 1971, hoping to find information they could use to discredit him. The revelation of the break-in became part of the Watergate scandal. Due to the gross governmental misconduct, all charges against Ellsberg were eventually dropped. White House counsel Charles Colson was later prosecuted and pled no contest for obstruction of justice in the burglary of Ellsberg's psychiatrist's office.

Civil Liberties : First Amendment - Press In 2004, Ellsberg signed the 9/11 Truth Statement along with 99 other prominent Americans and 40 family members of victims killed in the attacks of September 11th. The statement is a public appeal for a new inquiry into the attacks of September 11th, with an explicit call to examine evidence that suggests high-level government officials purposely allowed the attacks to occur. In July 2006, Ellsberg was interviewed on the Alex Jones radio show where he discussed his opinions on US Government involvement in the September 11 terrorist attacks. Ellsberg was arrested, in November 2005, for violating a county ordinance for trespassing while protesting against George W. Bush's conduct of the Iraq War. In September 2006, Ellsberg wrote in Harper's Magazine that he hoped someone would leak information about a U.S. invasion of Iran before the invasion happened, to stop the war. [3] He reiterated this in a September 21, 2006 interview on The Colbert Report . New York Times v. U.S. (1971)

Civil Liberties : First Amendment - Press Hustler Magazine v. Falwell 485 U.S. 46 (1988) Facts: A story in the November 1983 issue of Hustler Magazine featured a "parody" of an advertisement, modeled after an actual ad campaign, claiming that Rev. Jerry Falwell, a Baptist minister and political leader, had a drunken incestuous relationship with his mother in an outhouse. Falwell sued to recover damages for libel, invasion of privacy, and intentional infliction of emotional distress. Falwell won a jury verdict on the emotional distress claim and was awarded a total of $150,000 in damages. Hustler Magazine appealed. Question: Does the First Amendment's freedom of speech protection extend to the making of patently offensive statements about public figures, resulting perhaps in their suffering emotional distress? Findings: No. In a unanimous opinion the Court held that public figures, such as Jerry Falwell, may not recover for the intentional infliction of emotional distress without showing that the offending publication contained a false statement of fact which was made with "actual malice." The Court added that the interest of protecting free speech, under the First Amendment, surpassed the state's interest in protecting public figures from patently offensive speech, so long as such speech could not reasonably be construed to state actual facts about its subject.

Civil Liberties : First Amendment - Religion Two clauses in the First Amendment guarantee freedom of religion. The establishment clause prohibits the government from passing legislation to establish an official religion or preferring one religion over another . It enforces the "separation of church and state. Some governmental activity related to religion has been declared constitutional by the Supreme Court. For example, providing bus transportation for parochial school students and the enforcement of "blue laws" is not prohibited. The free exercise clause prohibits the government, in most instances, from interfering with a persons practice of their religion.

Civil Liberties : First Amendment - Religion Minersville School District v. Gobitis 310 U.S. 586 (1940) Facts: The Gobitis children were expelled from a public school in Minersville, Pennsylvania, for refusing to salute the flag as part of a daily school exercise. The Gobitis children were Jehovah's Witnesses; they believed that such a gesture of respect for the flag was forbidden by Biblical commands. Question: Did the mandatory flag salute violate the liberties protected by the First and Fourteenth Amendments? Findings: No. In an 8-1 decision, the Court declined to make itself "the school board for the country" and upheld the mandatory flag salute. The Court held that the state's interest in "national cohesion" was "inferior to none in the hierarchy of legal values" and that national unity was "the basis of national security." The flag, the Court found, was an important symbol of national unity and could be a part of legislative initiatives designed "to promote in the minds of children who attend the common schools an attachment to the institutions of their country.“ Gobitis was overturned in the case of West Virginia Board of Education v. Barnett (1943).

Civil Liberties : First Amendment - Religion Everson Board of Education 330 U.S. 1 (1947) Facts: A New Jersey law provided monetary reimbursements to parents who sent their children to school on public buses. These reimbursements was also provided for children attending parochial schools Question: Did the New Jersey law violate the Establishment Clause of of the First Amendment as made applicable to the states through the Fourteenth Amendment? Findings: No. The Court held that the law did not violate the Constitution. After detailing the history and importance of the Establishment Clause, Justice Black argued that services like bussing and police and fire protection for parochial schools are "separate and so indisputably marked off from the religious function" that for the state to provide them would not violate the First Amendment. The law did not pay parochial schools, nor did it support them directly in anyway. It was just a law enacted as a "general program" to assist parents of all religions with getting their children to school.

Civil Liberties : First Amendment - Religion Engle v. Vitale 370 U.S. 421 (1962) Facts: The New York Board of Regents authorized a brief, voluntary prayer for recitation at the beginning of each school day. The blandest of invocations read as follows: "Almighty God, we acknowledge our dependence upon Thee, and beg Thy blessings upon us, our teachers, and our country." Question: Does the reading of a nondenominational prayer violate the "establishment clause” of the First Amendment? Findings: Yes . “ Neither the prayer's nondenominational character nor its voluntary character saves it from unconstitutionality ” By providing the prayer, New York officially approved religion . This was the first in a series of cases in which the Court used the establishment clause to eliminate religious activities of all sorts, which had traditionally been a part of public ceremonies. See also Abington v. Schempp (1964).

Civil Liberties : First Amendment - Religion Stone v. Graham 449 U.S. 39 (1980) Facts: Sydell Stone and a number of other parents challenged a Kentucky state law that mandated the posting of the Ten Commandments in public school classrooms. Question: Did the Kentucky law violate the Establishment Clause of the First Amendment? Findings: Yes. In a 5-4 decision, the Court ruled that the Kentucky law violated the first part of the test established in Lemon v. Kurtzman , and thus violated the Establishment Clause of the Constitution. The Court found that the requirement that the Ten Commandments be posted "had no secular legislative purpose" and was "plainly religious in nature." The Court noted that the Commandments did not confine themselves to arguably secular matters (such as murder, stealing, etc.), but rather concerned matters such as the worship of God and the observance of the Sabbath Day. In Van Orden v. Perry (2005), the Court found that an eighteen sq. ft. stone monument engraved with the Ten Commandments was historical and secular, thus did not violate the Establishment Clause. The monument was located among thirty seven other monuments on the Texas capitol grounds.

Civil Liberties : First Amendment - Religion Lemon v. Kurtzman 403 U.S. 62 (1971) Facts: These two cases involved controversies over laws in Pennsylvania and Rhode Island. In Pennsylvania, a statute provided financial support for teacher salaries, textbooks, and instructional materials for secular subjects to private schools. The Rhode Island law provided direct supplemental salary payments to teachers in private elementary schools. Each statute made aid available to "church-related educational institutions." Question: Did the Rhode Island and Pennsylvania laws violate the Establishment Clause by making state monies available to "church-related educational institutions"? Findings: Yes. Chief Justice Burger articulated a three-part test for laws dealing with religious establishment. To be constitutional, a law must have "a secular legislative purpose," it must have principal effects which neither advance nor inhibit religion, and it must not foster "an excessive government entanglement with religion." The Court found that the subsidization of parochial schools furthered a process of religious inculcation, and that the "continuing state surveillance" necessary to enforce the specific provisions of the laws would inevitably entangle the state in religious affairs. The Court also noted the presence of an unhealthy "divisive political potential" concerning legislation which appropriates support to religious schools.

Civil Liberties : First Amendment - Religion Wisconsin V. Yoder 406 U.S. 205 (1972) Facts: Jonas Yoder and Wallace Miller, both members of the Old Order Amish religion, and Adin Yutzy, a member of the Conservative Amish Mennonite Church, were prosecuted under a Wisconsin law that required all children to attend public schools until age sixteen. The three parents refused to send their children to such schools after the eighth grade, arguing that high school attendance was contrary to their religious beliefs. Question: Did Wisconsin's requirement that all parents send their children to school at least until age sixteen violate the First Amendment by criminalizing the conduct of parents who refused to send their children to school for religious reasons? Findings: Yes. The Court held that individual's interests in the free exercise of religion under the First Amendment outweighed the State's interests in compelling school attendance beyond the eighth grade. The Court found that the values and programs of secondary school were "in sharp conflict with the fundamental mode of life mandated by the Amish religion," and that an additional one or two years of high school would not produce the benefits of public education cited by Wisconsin to justify the law.

Civil Liberties : First Amendment - Religion U.S. v. Lee 455 U.S. 252 (1982) Facts: Lee, an Amish employer, employed other Amish, but did withhold social security taxes from his employees. The IRS assessed him for back taxes and Lee sued, arguing that the requirement to pay Social Security taxes infringed upon his right to the free exercise of his religion. Question: When there is a conflict between a person's religious beliefs and a fundamental government program, who should prevail? In this case, how should the courts choose between an Amish man's belief that paying Social Security taxes would mean denying the precepts of his religion and the government's needs concerning taxation?

Civil Liberties : First Amendment - Religion Findings: Although Congress had exempted Amish employees from participation in the Social Security program in order to accommodate their religious beliefs, the Supreme Court refused to extend this exemption by allowing Amish employers to also avoid Social Security taxes. Writing for a unanimous Court, Justice Burger offered two arguments as a basis for this decision. First, pointed out that the Congressional exemption was only for self-employed Amish, not Amish who employed others; therefore, that exemption could not be construed as being applicable here. Second, although Burger agreed that Lee's religious beliefs were sincerely held, it simply was not true that all burdens on religion are necessarily unconstitutional. So long as the government can demonstrate a compelling interest, it could be permissible for it to create a limitation on religious liberty. The tax system could not function if denominations were allowed to challenge it because tax payments were spent in a manner that violates their religious belief. Because the broad public interest in maintaining a sound tax system is of such a high order, religious belief in conflict with the payment of taxes affords no basis for resisting the tax. U.S. v Lee 455 U.S. 252 (1982)

Civil Liberties : First Amendment - Religion Meyer v. Nebraska 262 U.S. 390 (1923) Facts: Nebraska, along with other states, prohibited the teaching of certain foreign languages to grade school children. Meyer, who taught German in a Lutheran school, was convicted under this law. Question: Does the Nebraska law violate the Fourteenth Amendment's Due Process clause? Findings: Yes. The Nebraska law is unconstitutional. Nebraska violated the liberty protected by the Due Process Clause of the Fourteenth Amendment. “Liberty means more than freedom from bodily restraint.” State regulation of liberty must be reasonably related to a proper state objective. The legislature's view of reasonableness was subject to supervision by the courts. The legislative purpose of the law was to promote assimilation and civic development. But these purposes were not adequate to justify interfering with Meyer's liberty to teach or the liberty of parents to employ him during a "time of peace and domestic tranquillity."

Civil Liberties : First Amendment - Religion Pierce v. Society of Sisters of the Holy Names of Jesus and Mary 268 U.S. 510 (1925) Facts: In 1922 voters in Oregon passed an amendment to the Oregon Compulsory Education Act, removing the provision which had allowed children to attend private schools. The intention of the Act prior to the Amendment was to ensure compulsory education of children up to the eighth grade. The Society of Sisters filed suit against the governor and other state officials arguing that the Amendment violated their First Amendment right to religious belief and their Fourteenth Amendment Due Process right. An Oregon District Court granted and injunction. Question: Did the amended Act violate the parents’ Fourteenth Amendment Due Process right to choose enrollment in private schools? Finding: Yes. Justice McReynolds stated “… children were not "the mere creature[s] of the state" and that, by its very nature, the traditional American understanding of the term liberty prevented the state from forcing students to accept instruction only from public schools. He stated that this responsibility belonged to the child's parents or guardians, and that the ability to make such a choice was a "liberty" protected by the Fourteenth Amendment . This is an important case as it uses the concept of substantive due process.

Civil Liberties : First Amendment - Religion Cantwell v. Connecticut 310 U.S. 296 (1940) Facts: Jesse Cantwell and his son were Jehovah's Witnesses; they were proselytizing a predominantly Catholic neighborhood in Connecticut. After voluntarily hearing an anti-Roman Catholic message on the Cantwells' portable phonograph, two pedestrians reacted angrily. The Cantwells were subsequently arrested for violating a local ordinance requiring a permit for solicitation and for inciting a breach of the peace Question: Did the solicitation statute or the "breach of the peace" ordinance violate the Cantwells' First Amendment free speech or free exercise rights? Findings: Yes. In a unanimous decision, the Court held that while general regulations on solicitation were legitimate, restrictions based on religious grounds were not. Because the statute allowed local officials to determine which causes were religious and which ones were not, it violated the First and Fourteenth Amendments. The Court also held that while the maintenance of public order was a valid state interest, it could not be used to justify the suppression of "free communication of views." The Cantwells' message, while offensive to many, did not entail any threat of "bodily harm" and was protected religious speech.

Civil Liberties : First Amendment – Religion (Free Exercise) Church of the Lukumi Babalu Aye v. City of Hialeah 508 U.S. 520 (1993) Facts: The Church of Lukumi Babalu Aye practiced the Afro-Caribbean-based religion of Santeria. Santeria used animal sacrifice as a form of worship in which an animal's carotid arteries would be cut and, except during healing and death rights, the animal would be eaten. Shortly after the announcement of the establishment of a Santeria church in Hialeah, Florida, the city council adopted several ordinances addressing religious sacrifice. The ordinances prohibited possession of animals for sacrifice or slaughter, with specific exemptions for state-licensed activities. Question: Did the City of Hialeah's ordinance, prohibiting ritual animal sacrifices, violate the First Amendment's Free Exercise Clause? Findings: Yes. The Court held that the ordinances were neither neutral nor generally applicable. The ordinances had to be justified by a compelling governmental interest and they had to be narrowly tailored to that interest. The core failure of the ordinances were that they applied exclusively to the church. The ordinances singled out the activities of the Santeria faith and suppressed more religious conduct than was necessary to achieve their stated ends. Only conduct tied to religious belief was burdened. The ordinances targeted religious behavior, therefore they failed to survive the rigors of Strict Scrutiny. This is a good illustration of how religious belief falls under the purview of Strict Scrutiny.

Civil Liberties : First Amendment – Religion Marsh v. Chambers 463 U.S 783 (1983) Facts: Ernest Chambers, a member of the Nebraska legislature, challenged the legislature's chaplaincy practice in federal court. This practice involves the offering of a prayer at the beginning of each legislative session by a chaplain chosen by the state and paid out of public funds. The district court supported Chambers on the use of public funds. The appeals court supported Chambers on the prayer practice. Both parties appealed to the U.S. Supreme Court. Question: Does the chaplaincy practice of the Nebraska legislature violate the Establishment Clause of the First Amendment? Findings: In a 6-to-3 decision, the Court upheld the chaplaincy practice. In his opinion for the Court, Chief Justice Warren Burger abandoned the three-part test of Lemon v. Kurtzman , which had been the touchstone for cases involving the Establishment Clause. In its place, Burger rested the Court's opinion on historical custom. Prayers by tax-supported legislative chaplains could be traced to the First Continental Congress and to the First Congress that framed the Bill of Rights. As a consequence, the chaplaincy practice had become "part of the fabric of our society." In such circumstances, an invocation for Divine guidance is not an establishment of religion. "It is," wrote Burger, "simply a tolerable acknowledgment of beliefs widely held among the people of this country."

Civil Liberties : First Amendment – Religion Wallace v. Jaffree 478 U.S. 38 (1985) Facts: In Federal District Court, appellee(s) challenged the constitutionality of a 1981 Alabama law authorizing a 1-minute period of silence in all public schools "for meditation or voluntary prayer." Although finding that the law was an effort to encourage a religious activity, the District Court ultimately held that the Establishment Clause of the First Amendment does not prohibit a State from establishing a religion. The Court of Appeals reversed. Question: Did Alabama law violate the First Amendment's Establishment Clause? Findings: Yes. The Court determined the constitutionality of Alabama's prayer and meditation law by applying the secular purpose test, which asked if the state's actual purpose was to endorse or disapprove of religion. The Court held that Alabama's passage of the prayer and meditation statute was not only a deviation from the state's duty to maintain absolute neutrality toward religion, but was an affirmative endorsement of religion. As such, the statute clearly lacked any secular purpose as it sought to establish religion in public schools, thereby violating the First Amendment's Establishment Clause.

Civil Liberties : First Amendment – Religion Santa Fe Independent School District v. Doe 530 U.S. 290 (2000) Facts: Prior to 1995, a student elected as Santa Fe High School's student council chaplain delivered a prayer over the public address system before each home varsity football game. Respondents, Mormon and Catholic students or alumni and their mothers, filed a suit challenging this practice and others under the Establishment Clause of the First Amendment. While the suit was pending, petitioner school district (District) adopted a different policy, which authorizes two student elections, the first to determine whether "invocations" should be delivered at games, and the second to select the spokesperson to deliver them. After the students held elections authorizing such prayers and selecting a spokesperson, the District Court entered an order modifying the policy to permit only nonsectarian, nonproselytizing prayer. The Fifth Circuit held that, even as modified by the District Court, the football prayer policy was invalid. Question: Does the Santa Fe Independent School District's policy permitting student-led, student-initiated prayer at football games violate the Establishment Clause of the First Amendment?

Civil Liberties : First Amendment – Religion Santa Fe Independent School District v. Doe Findings: Yes. In a 6-3 opinion written by Justice Stevens, the Court held that the District's policy permitting student-led, student-initiated prayer at football games violates the Establishment Clause. The Court concluded that the football game prayers were public speech authorized by a government policy and taking place on government property at government-sponsored school-related events and that the District's policy involved both perceived and actual government endorsement of the delivery of prayer at important school events. Such speech is not properly characterized as "private," wrote Justice Stevens for the majority. In dissent, Chief Justice William H. Rehnquist, joined by Justices Antonin Scalia and Clarence Thomas, noted the "disturbing" tone of the Court's opinion that "bristled with hostility to all things religious in public life.“ See also Lee v. Weisman (1992) in which the Court found that the invitation of a clergy member to give an invocation at a middle school graduation ceremony violated the Establishment Clause.

Civil Liberties : Second Amendment – Right to Bear Arms Second Amendment “ A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

Civil Liberties : Second Amendment – Right to Bear Arms District of Columbia v. Heller 554 U.S. ____ (2008 ) Fact: The District of Columbia banned the possession of handguns and limited registration to the discretion of the police chief for one year periods only. D.C. Special Police Officer Richard Heller’s application for a license to possess a handgun for home defense was denied. Officer Heller then filed suit against the City in the Federal District Court of D.C. to enjoin the City from enforcing the handgun ban. The D.C. Appellate Court overturned the D.C. District Court’s dismissal holding that the ban on handguns and trigger lock requirement on legally registered weapons violated the Second Amendment. Question: Does the District of Columbia’s ban on handguns and their viable use in the home violate the Second Amendment? Finding: Yes. In a 5-4 decision, the Court determined that the D.C. ban on handguns and trigger lock requirement for possession within the home violated the Second Amendment. Justice Scalia noted that the Second Amendment’s intention is to protect the ancient right of self defense, and that understanding can be read in the constitutions of various states. Justices Souter, Ginsburg, Stevens, and Breyer disagreed stating that the Second Amendment is intrinsically linked to the reliance on state militias prior to the institutionalization of the U.S. Army.

Module 2C :Civil Liberties - Fourth Amendment – Search and Seizure Objectives: Understand the evolution of the Fourth Amendment. Understand the principles behind police procedures Learn the tests and limitations of the Fourth Amendment Discuss the significance of path-breaking cases such as Mapp v Ohio Discuss the applicability of the Fourth Amendment to contemporary issues

Civil Liberties : Fourth Amendment – Search and Seizure Fourth Amendment "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." With the passage of the U.S. Bill of Rights in1791, (Amendments I-X of the U.S. Constitution), Americans had protection against unreasonable searches and seizures by the federal government. The understanding and interpretation of ideas expressed in the Fourth Amendment have been influenced by historical events, technological inventions, and changes in thinking about the meaning of the provisions in the Amendment.

Civil Liberties : Fourth Amendment – Search and Seizure What is Unreasonable? The question of what is "unreasonable" was first dealt with at the federal level in the 1914 case of Weeks v. United States and nearly fifty years later at the state level in the 1961 case of Mapp v. Ohio . In Weeks, the Court argued that evidence gathered in an illegal manner, without probable cause or without a search warrant, should be excluded from court proceedings. In part, this exclusionary rule was adopted to prevent abuses by the police and other government officials. The logic followed that if police understand that evidence seized in a manner that violates any of the provisions of the Fourth Amendment will be excluded from court proceedings, they will less likely conduct searches without warrants or without probable cause. The Weeks decision only affected federal courts, and two-thirds of the state courts rejected the exclusionary rule, claiming the rule placed unnecessary burdens on the police and the rule favored the guilty. During the past thirty years many exceptions to the provisions outlined in the Fourth Amendment have been approved by the U.S. Supreme Court. In many situations, warrantless searches have been upheld by the Court. In addition, a number of exceptions to the Exclusionary Rule have also been approved. The constant changes in our thinking about and interpretation of the meaning of the Fourth Amendment illustrates the continuous evolving struggle of a citizenry trying to balance the democratic principles of securing and protecting individual rights with the promoting of public order and the common welfare.

Civil Liberties : Fourth Amendment – Search and Seizure Mapp v. Ohio 367 U.S. 643 (1961) Facts: Dolree Mapp was convicted of possessing obscene materials after an admittedly illegal police search of her home for a fugitive. She appealed her conviction on the basis of freedom of expression. Question: Were the confiscated materials protected by the First Amendment? (May evidence obtained through a search in violation of the Fourth Amendment be admitted in a state criminal proceeding?) Findings: Yes. The Court declared that "all evidence obtained by searches and seizures in violation of the Constitution is, by the Fourth Amendment, inadmissible in a state court." Mapp had been convicted on the basis of illegally obtained evidence. This was an historic and controversial decision. It placed the requirement of excluding illegally obtained evidence from court at all levels of the government. The decision launched the Court on a troubled course of determining how and when to apply the exclusionary rule.

Mapp v. Ohio (1961) : The Players Bivens and Moore Archie Moore Don King Dolly Mapp Sgt. Carl Delau Shondor Birns

If an individual voluntarily consents to a search, no warrant is needed. The key question in this kind of search is what counts as consent? In order for a consent search to be legal, the individual must be in control of the area to be searched and cannot have been pressured or tricked into agreeing to the search. A police officer that spots something in plain view does not need a search warrant to seize the object. In order for a plain view search to be legal, the officer must be in a place he has the right to be in and the object he seizes must be plainly visible in this location. If a suspect has been legally arrested, the police may search the defendant and the area within the defendant's immediate control. In a search incident to arrest no warrant is necessary as long as a spatial relationship exists between the defendant and the object. Following an arrest, the police may make a protective sweep search if they reasonably believe that a dangerous accomplice may be hiding in an area near where the defendant was arrested. To do so, police are allowed to walk through a residence and complete a "cursory visual inspection" without a warrant. If evidence of or related to a criminal activity is in plain view during the search, the evidence may be legally seized. If the police stop a vehicle based on probable cause, they can search for objects related to the reason for the stop without obtaining a warrant. During a car search, the police are also allowed to frisk the subject for weapons, even without a warrant if they have reasonable suspicion that the suspects may be involved in illegal activities. Warrantless Searches

Late for work, Diego was driving five miles over the speed limit when pulled over by the police. Ordering Diego out of the car, the police proceed to frisk him and find a small weapon in his jacket pocket. Is this search legal or illegal? Jody and Chandra attend a keg party where all of those drinking were under age. The police break up the party without arresting anyone. They seize Jody's purse. Inside, they find marijuana and arrest Jody for possession. Is this search legal or illegal? While chaperoning a high-school football game, police in Mississippi see a gun on the front seat of a parked car. Opening the car door, they discover not only the gun but also bullets and a knife. Is this search legal or illegal? In a neighborhood well known for producing methamphetamines, the police have a warrant to search the basement of one home to find a production lab. Finding nothing in the basement, they perform a protective sweep search on the rest of the house. Is this search legal or illegal? Officer Jones is trying to find a convict who escaped from a nearby jail. Going door-to-door in the neighborhood surrounding the jail, he asks permission to enter each house and search it. The Nguyen's allow him to enter their house. Once in the house, the officer sees and seizes an unregistered firearm that is on a bookshelf. Is this search legal or illegal? Using a valid arrest warrant, police arrest a woman for running a drug ring out of her house. Believing that her boss, one of the biggest drug dealers in the country, may be hiding inside the house, they walk through the house looking for him. Is this search legal or illegal? At the local shopping mall, an undercover detective notices a group of teenagers shopping together. Following them, he observes no illegal behavior. However, once they exit the mall he stops them and orders them to turn over their purses, wallets, and jackets. Is this search legal or illegal? Scenarios

Civil Liberties : Fourth Amendment – Search and Seizure Olmstead v. U.S. 277 U.S. 438 (1932) Facts: Roy Olmstead was a suspected bootlegger. Without judicial approval, federal agents installed wiretaps in the basement of Olmstead's building (where he maintained an office) and in the streets near his home. Olmstead was convicted with evidence obtained from the wiretaps. This case was decided along with Green v. United States , in which Green and several other defendants were similarly convicted, based on illegally obtained wire-tapped conversations, for conspiracy to violate the National Prohibition Act by importing, possessing, and selling illegal liquors. Question: Did the use of evidence disclosed in wiretapped private telephone conversations, violate the recorded party's Fourth and Fifth Amendment rights?

Civil Liberties : Fourth Amendment – Search and Seizure Findings: No. The Court held that neither the Fourth nor Fifth Amendment rights of the recorded parties were violated. The use of wiretapped conversations as incriminating evidence did not violate their Fifth Amendment protection against self incrimination because they was not forcibly or illegally made to conduct those conversations. Instead, the conversations were voluntarily made between the parties and their associates. Moreover, the parties' Fourth Amendment rights were not infringed because mere wiretapping does not constitute a search and seizure under the meaning of the Fourth Amendment. These terms refer to an actual physical examination of one's person, papers, tangible material effects, or home - not their conversations. Finally, the Court added that while wiretapping may be unethical no court may exclude evidence solely for moral reasons. When criticized for his opinion, Justice Taft mocked his foes as he wrote to a friend: "If they think we are going to be frightened in our effort to stand by the law and give the public a chance to punish criminals, they are mistaken, even though we are condemned for lack of high ideals. Olmstead v. U.S. 277 U.S. 438 (1932)

Civil Liberties : Fourth Amendment – Search and Seizure Katz v. U.S. 389 U.S. 347 (1967) Facts: Acting on a suspicion that Katz was transmitting gambling information over the phone to clients in other states, federal agents attached an eavesdropping device to the outside of a public phone booth used by Katz. Based on recordings of his end of the conversations, Katz was convicted under an eight-count indictment for the illegal transmission of wagering information from Los Angeles to Boston and Miami. On appeal, Katz challenged his conviction arguing that the recordings could not be used as evidence against him. The Court of Appeals rejected this point, noting the absence of a physical intrusion into the phone booth itself. The Court granted certiorari. Question: Does the Fourth Amendment protection against unreasonable searches and seizures require the police to obtain a search warrant in order to wiretap a public pay phone Finding: Yes. The Court ruled that Katz was entitled to Fourth Amendment protection for his conversations and that a physical intrusion into the area he occupied was unnecessary to bring the Amendment into play. "The Fourth Amendment protects people, not places," wrote Justice Potter Stewart for the Court. A concurring opinion by John Marshall Harlan introduced the idea of a 'reasonable' expectation of Fourth Amendment protection.

Civil Liberties : Fourth Amendment – Search and Seizure Illinois v. Gates 462 U.S 213 (1983) Facts: The Bloomington, Illinois Police Department received an anonymous tip that Lance and Susan Gates were selling drugs out of their home. After observing the Gates's drug smuggling operation in action, police obtained a warrant and upon searching the suspects' car and home uncovered large quantities of marijuana, other contraband, and weapons. Question: Did the search of the Gates's home violate the Fourth and Fourteenth Amendments? Findings: No. The Court found no constitutional violation and argued that the lower court misapplied the test for probable cause which the Court had announced in Spinelli v. United States (1969). Justice Rehnquist argued that an informant's veracity, reliability, and basis of knowledge are important in determining probable cause, but that those issues are intertwined and should not be rigidly applied. He argued that the "totality-of-the-circumstances" approach to probable cause was the correct one to glean from Spinelli, and that the law enforcement officials who obtained a warrant abided by it in this case.

Civil Liberties : Fourth Amendment – Search and Seizure U.S. v. Ross 456 U.S. 798 (1982) Facts: Acting on a tip that Ross was selling drugs from his car. District of Columbia, police officers pulled Ross over, opened his trunk, and discovered a bag of heroin. After returning to the station, another search uncovered $3200.00 in cash. Officers acted without a warrant in each search. Question: Did the police violate the Fourth Amendment? Findings: No. The Court held that since the search was conducted with probable cause and extended into the area of which a judge issuing a warrant would have approved , the officers did not violate the Fourth Amendment. Justice John Paul Stevens defended the search of the vehicle's trunk, arguing that if probable cause justifies a vehicle search, then every part of the vehicle is open to inspection.

Civil Liberties : Fourth Amendment – Search and Seizure Facts: In May 1979, DEA agent Robert Williams saw Charles Carney approach a juvenile male in San Diego, California. They entered Mr. Carney's Dodge-Midas mini motor home parked in a nearby lot. Agent Williams had been told that the same motor home was being used by an adult who was exchanging marijuana for sex. “With the patience known only to law enforcement officers on surveillance”, Agent Williams and other agents waited over an hour. The youth left the motor home, was stopped, and told the agents that he received marijuana in return for having sex with Carney. The juvenile accompanied the agents to the motor home. The agents knocked on the door, and Carney stepped out into his worst nightmare. The agents identified themselves, and without a warrant or consent, entered the motor home and conducted a search finding marijuana, plastic bags, and a scale used for weighing drugs. The motor home was taken to a local police station, and searched again without consent or a warrant revealing more marijuana. The California Supreme Court classified the mini motor home as a “hybrid” with "the mobility attribute of an automobile . . . with most of the privacy characteristics of a house." California v. Carney 471 U.S. 386 (1985)

Civil Liberties : Fourth Amendment – Search and Seizure California v. Carney (1985) Findings: No. In the absence of exigent circumstances, a warrantless, nonconsensual entry into a suspect's home for a felony arrest or to conduct a search violates the Fourth Amendment. See Payton v. New York (1980). On the other hand, an officer who has probable cause to believe an item subject to seizure is in a motor vehicle on a public street or highway, or public vehicular area, may seize the vehicle and search it without a warrant or consent. See Carroll v. U.S . (1925). If the courts consider the mini motor home a residence as it sat on the lot, the officers violated Charles Carney's constitutional rights by their entry and search. If, however, it is a motor vehicle as it sat there and was just being used as a place for illegal sexual trysts, then the officers' actions were constitutional and “Carney's goose is cooked.” The case was remanded to the district court for retrial. Justices Stevens, Brennan, and Marshal dissented arguing that the Court should have more confidence in the decisions of the state and lower federal courts. The dissenters also noted that warrantless searches of vehicles, Carroll v. U.S ., is allowed because of the mobility of vehicles as opposed to a structure. That is, a warrantless search would be constitutional in this case if Carney’s motor home was being driven. The dissenters also noted problems with other types of hybrid vehicles. Question: Did the search of the mobile motor home without a warrant violate Carney’s Fourth Amendment right?

Civil Liberties : Fourth Amendment – Search and Seizure Chimel v. California 379 U.S. 752 (1969) Facts: Local police officers went to Chimel's home with a warrant authorizing his arrest for burglary. Upon serving him with the arrest warrant, the officers conducted a comprehensive search of Chimel's residence. The search uncovered a number of items that were later used to convict Chimel. State courts upheld the conviction. Question: Was the warrantless search of Chimel's home constitutional under the Fourth Amendment as "incident to that arrest?" Findings: No. The Court held that the search of Chimel's house was unreasonable under the Fourth Amendment. The Court reasoned that searches "incident to arrest" are limited to the area within the immediate control of the suspect. While police could reasonably search and seize evidence on or around the arrestee's person, they were prohibited from rummaging through the entire house without a search warrant. The Court emphasized the importance of warrants and probable cause as necessary bulwarks against government abuse. Chimel was upheld in New York v. Belton (1981). In the Belton case, the Court found that incident to arrest could include a search of the “passenger compartment” of an automobile. The Court will hear a case on October 7, 2008, Arizona v. Gant involving a search, incident to arrest, of an automobile after the suspect had been arrested and placed in the police car. Belton, and potentially Gant, allow for expansion of what is known in law as a “Bright Line Rule.”

Civil Liberties : Fourth Amendment – Search and Seizure Florida v. Bostick 501 U.S. 429 (1991) Facts: In Broward County, Florida, Sheriff's Department officers regularly boarded buses during stops to ask passenger for permission to search their luggage. Terrance Bostick, a passenger, was questioned by two officers who sought permission to search his belongings and advised him of his right to refuse. After obtaining Bostick's permission, the officers searched his bags, found cocaine, and arrested him on drug trafficking charges. Bostick filed a motion to suppress the evidence on the ground that it was illegally obtained, but the trial court denied the motion. The State Supreme Court held that the bus searches were per se unconstitutional because police did not afford passengers the opportunity to "leave the bus" in order to avoid questioning. Florida appealed and the Supreme Court granted certiorari. Question: Is the acquisition of evidence during random bus searches conducted with passengers' consent a violation of the Fourth Amendment?

Civil Liberties : Fourth Amendment – Search and Seizure Florida v. Bostick 501 U.S. 429 (1991) Findings: No. The Court noted that when deciding if a search request is overly coercive, within a confined space such as a bus, one must not look at whether a party felt "free to leave," but whether a party felt free to decline or terminate the search encounter. The Court held that in the absence of intimidation or harassment, Bostick could have refused the search request. Moreover, the fact that he knew the search would produce contraband had no bearing on whether his consent was voluntarily obtained. The test of whether a "reasonable person" felt free to decline or terminate a search presupposes his or her innocence. The Court will hear a case, Pearson v. Callahan, on October 14, 2008, dealing with a Fourth Amendment consent issue called “Consent Once Removed.” Consent is one the exceptions - along with prevention of escape, possibility of harm, rendering of immediate aid, prevention of destruction of evidence, and hot pursuit - that allow for warrantless searches of homes. In some operations, the police will use an undercover officer, “snitch”, or “decoy” to obtain consent to enter a home and then conduct a subsequent search. The practical question here is just how far this doctrine can be stretched before its violates the occupant’s Fourth Amendment right while balancing it against the ability of the police to do their job.

Civil Liberties : Fourth Amendment – Search and Seizure U.S. v. Leon 468 U.S. 897 (1984) Facts: The exclusionary rule requires that evidence illegally seized must be excluded from criminal trials. Leon was the target of police surveillance based on an anonymous informant's tip. The police applied to a judge for a search warrant of Leon's home based on the evidence from their surveillance. A judge issued the warrant and the police recovered large quantities of illegal drugs. Leon was indicted for violating federal drug laws. A judge concluded that the affidavit for the search warrant was insufficient; it did not establish the probable cause necessary to issue the warrant. Thus, the evidence obtained under the warrant could not be introduced at Leon's trial. Question: Is there a "good faith" exception to the exclusionary rule? Findings: Yes. The justices found that evidence seized on the basis of a mistakenly issued search warrant could be introduced at trial. The exclusionary rule, argued the majority, is not a right but a remedy justified by its ability to deter illegal police conduct. In Leon , the costs of the exclusionary rule outweighed the benefits. “The exclusionary rule is costly to society: Guilty defendants go unpunished and people lose respect for the law.” The benefits of the exclusionary rule are uncertain: The rule cannot deter police in a case like Leon , where they act in good faith on a warrant issued by a judge.

The Good Faith Exemption is now the most commonly invoked defense for police searches. It still leaves open one broad avenue for voiding warrants, however -- the concept of "probable cause." Although procedural technicalities are now permissible, warrants can still be challenged on the grounds that police did not have reason to initiate the search in the first place . Post hoc does not justify proctor hoc. Just because a search turned up incriminating evidence did not prove police had sufficient motivation to look for it in the first place. What is under attack is police logic -- the whole question of how officers think. Policemen are usually not highly educated -- certainly not as well as lawyers and judges. They often have trouble articulating their suspicions and putting them into acceptable terms. Much of their thinking involves "fuzzy logic" -- various hunches or suspicions that "things don't add up." Recall the famous scene in the 1972 movie, The French Connection (based on a real investigation), where two New York drug detectives decide something "doesn't seem right" when they see a party of low-level mobsters celebrating at the Copacabana. They follow the suspects home, stake out the residence, and eventually stumble into an international narcotics ring -- still the biggest drug bust in American history. Good Faith Exceptions to the Exclusionary Rule

Today, such an investigation would be patently unconstitutional, and the French connection drug dealers would all be politely excused and told to go home. There was not the slightest "probable cause" for initiating the investigation. All that followed -- including the subway shoot-out – was "fruit-of-the-poisoned-tree." Volumes of legal documents have now been written arguing what constitutes "probable cause." Much of this consists of heaping judicial scorn on police "hunches" and other "instincts" that do not meet the standard of logical deduction. As a result, law enforcement has been "professionalized," meaning that investigators are now trained to think more like lawyers than detectives. It was this "professionalism" that led the FBI to conclude -- without even bothering to consult a judge -- that there was no "probable cause" for continuing the investigation of Zacharias Moussaoui, the supposed “Nineteenth Hijacker.” In Arizona v. Evans (1995), the Court upheld an arrest based on an error committed by a clerk. Essentially, the presumption of innocence on the part of the clerk allows a good faith exception to the exclusionary rule. The Court will hear a case on October 7, 2008, Herring v. U.S ., which could potentially expand good faith exceptions. In Herring , a clerk made a mistake in affirming a warrant, issued in another county, for an arrest, but the police officer had already made the actual arrest. The police officer found drugs and weapons on the suspect after arresting him. Good Faith Exceptions to the Exclusionary Rule

Civil Liberties : Fourth Amendment – Search and Seizure Facts: Terry and two other men were observed by a plain clothes policeman in what the officer believed to be "casing a job, a stick-up." The officer stopped and frisked the three men, and found weapons on two of them. Terry was convicted of carrying a concealed weapon and sentenced to three years in jail. Question: Was the search and seizure of Terry and the other men in violation of the Fourth Amendment? Finding: No. In an 8-1 decision, the Court held that the search undertaken by the officer was reasonable and that the weapons seized could be introduced into evidence against Terry. Attempting to focus narrowly on the facts of this particular case, the Court found that the officer acted on more than a "hunch" and that "a reasonably prudent man would have been warranted in believing Terry was armed and thus presented a threat to the officer's safety while he was investigating his suspicious behavior." The Court found that the searches undertaken were limited in scope and designed to protect the officer's safety incident to the investigation. Terry v. Ohio 392 U.S. 1 (1968)

Civil Liberties : Fourth Amendment – Search and Seizure Facts: A police officer pulled over and arresting Robinson for operating an automobile without a valid permit. The officer then frisked Robinson and discovered a crumpled cigarette package containing fourteen vials of heroin in his pocket. U.S. v. Robinson 414 U.S. 218 (1971) Question: Did the officer's search violate the Fourth Amendment? Findings: No. The Court upheld the search. Distinguishing between searches done to discover concealed weapons and those conducted coextensive with an arrest, Justice Rehnquist argued since the officer did not conduct the search in an abusive or extreme manner, and because he acted consistent with the authority vested in a police officer when making an arrest, his actions were legitimate.

Civil Liberties : Fourth Amendment – Search and Seizure California v. Greenwood 486 U.S. 35 (1988) Facts: Local police suspected Billy Greenwood was dealing drugs from his residence. Because the police did not have enough evidence for a warrant to search his home, they searched the garbage bags Greenwood had left at the curb for pickup. The police uncovered evidence of drug use, which was then used to obtain a warrant to search the house. That search turned up illegal substances, and Greenwood was arrested on felony charges. Question: Did the warrantless search and seizure of Greenwood's garbage violate the Fourth Amendment? Findings: No. The Court held that garbage placed at the curb is not protected under the Fourth Amendment. The Court argued that there was no reasonable expectation of privacy for trash on public streets. Such trash is "readily accessible to animals, children, scavengers, snoops, and other members of the public." The Court also noted that the police cannot be expected to ignore criminal activity that can be observed by "any member of the public."

Civil Liberties : Fourth Amendment – Search and Seizure California v. Ciraolo 476 U.S. 206 (1986) Facts: The Santa Clara Police received an anonymous tip that Ciraolo was growing marijuana in his back yard. Unable to observe the yard from the ground due to a high fence which encircled it, the police secured a private plane and flew over Ciraolo's house at an altitude of 1,000 feet. The fly-over confirmed the presence of marijuana. The police then obtained a search warrant, seized seventy three plants on the next day, and arrested Ciraolo who then pleaded guilty to the cultivation of marijuana. The California Court of Appeals, however, found that the aerial observation was illegal and reversed Ciraolo's conviction. Question: Did the warrantless, aerial observation of Ciraolo's back yard from 1,000 feet constitute an illegal search violating the Fourth Amendment? Findings: No. The Court found that the observation did not violate the Constitution. Chief Justice Burger reasoned that the Fourth Amendment protections regarding the home had never been absolute: for example, police officers are not obligated to shield their eyes when passing homes on public streets or sidewalks. Since the observations of the Santa Clara officers was "nonintrusive" and "took place within public navigable airspace," their actions were consistent with the Fourth Amendment. "Any member of the public flying in this airspace who glanced down could have seen everything that these officers observed," concluded Burger to evaluate privacy claims.

Civil Liberties : Fourth Amendment – Search and Seizure Kyllo v. U.S . 533 U.S. 27 (2001) Facts: A Department of the Interior agent, suspicious that Danny Kyllo was growing marijuana, used a infrared-imaging device to scan his triplex. The imaging was to be used to determine if the amount of heat emanating from the home was consistent with the high-intensity lamps typically used for indoor marijuana cultivation. The imaging revealed that relatively hot areas existed, compared to the rest of the home. Based on informants, utility bills, and the infrared imaging, a federal judge issued a warrant to search Kyllo's home. The search unveiled growing marijuana. After Kyllo was indicted on a federal drug charge, he unsuccessfully moved to suppress the evidence seized from his home and then entered a conditional guilty plea. The Court of Appeals held that Kyllo had shown no expectation of privacy because he had made no attempt to conceal the heat escaping from his home, and even if he had, there was no reasonable expectation of privacy because the imager "did not expose any intimate details of Kyllo's life," only "amorphous hot spots on the roof and exterior wall."

Civil Liberties : Fourth Amendment – Search and Seizure Question: Does the use of a infrared imaging device to detect heat emanating from a private home constitute an unconstitutional search in violation of the Fourth Amendment? Kyllo v. U.S . 533 U.S. 27 (2001 ) Findings: Yes. the Court held 5-4 that "where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a 'search' and is presumptively unreasonable without a warrant." In dissent, Justice John Paul Stevens argued that the "observations were made with a fairly primitive thermal imager that gathered data exposed on the outside of [Kyllo's] home but did not invade any constitutionally protected interest in privacy," and were, thus, "information in the public domain."

Module 2D -Civil Liberties : Fifth, Sixth & Eighth Amendments Objectives: Understand the evolution of rights involved in police procedures such as interrogation Understand the evolution of rights involved in counsel and trial procedure Understand the devolution of power away from the states as witnessed through selective incorporation of parts of the Fifth Amendment Discuss the most significant cases involving the Fifth, Sixth, and Eighth Amendments Learn the various stages of criminal trials Discuss the nuanced interpretation of the Eight Amendment

Civil Liberties : Fifth Amendment Fifth Amendment “ 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 offence 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.” Grand Jury Hearing for Capital Crimes B. Double Jeopardy C. Self Incrimination D. Due Process E. “Just Compensation” in government acquisition of private property by “Imminent Domain.”

Civil Liberties : Fifth Amendment – Double Jeopardy Palko v. Connecticut 302 U.S. 319 (1937) Facts: Frank Palko was charged with first-degree murder and convicted instead of second-degree murder. Palko was then sentenced to life imprisonment. The state of Connecticut appealed and won a new trial. The second time Palko was found guilty of first-degree murder and sentenced to death. Question: Does Palko's second conviction violate the protection against double jeopardy guaranteed by the Fifth Amendment because this protection applies to the states by virtue of the Fourteenth Amendment's due process clause? Findings: No. The Supreme Court upheld Palko's second conviction. In his majority opinion, Justice Cardozo formulated principles that were to direct the Court's actions for the next three decades. He noted that some Bill of Rights guarantees--such as freedom of thought and speech--are fundamental, and that the Fourteenth Amendment's due process clause absorbed these fundamental rights and applied them to the states. Protection against double jeopardy was not a fundamental right. Palko died in Connecticut's gas chamber in April 1938. The Double Jeopardy right was incorporated to the states in Benton v. Maryland (1969).

Civil Liberties : Fifth Amendment – Grand Jury Campbell v. Louisiana 523 U.S. 392 (1998) Facts: Jerry Campbell, a white man, was indicted for second-degree murder by a grand jury in Evangeline Parish, Louisiana. Campbell moved to quash the indictment by citing a long history of racial discrimination in the selection of grand jury forepersons in Evangeline Parish. No African-American had served as a foreperson for the past sixteen years despite the fact twenty percent of the registered voters were black. Campbell claimed such practices violated his Fourteenth Amendment equal protection and due process rights. A Louisiana trial judge denied Campbell's challenge, holding that he lacked standing as a white man complaining about the exclusion of African-Americans from serving as forepersons. The Louisiana Court of Appeal overruled the trial judge and decided Campbell had standing. The Louisiana Supreme Court reversed the Court of Appeal. Question: Does the exclusion of other races, other than the defendant's, violate the Due Process Clause of the Fourteenth Amendment? Findings: Yes. The unanimous opinion written by Justice Kennedy, held that "a defendant has standing to litigate whether his conviction was procured by means or procedures which contravene due process." A white defendant could assert the right of the grand jury to be free of discrimination because racial discrimination in jury selection casts doubt on the integrity of the entire trial process

Civil Liberties : Fifth Amendment – Grand Jury In re Pappas 408 U.S. 665 (1972) Facts: Pappas, a television newsman and photographer working out of a Providence RI office of a New Bedford MA television station, was called to New Bedford to report on civil disorders involving fires and other turmoil. Pappas intended to cover a Black Panther news conference. Pappas was admitted inside the Panther headquarters after agreeing that he would not disclose anything he saw or heard. Pappas stayed for three hours. He did not write a story based on his experience. Pappas was later summoned before a grand jury but he refused to answer questions about events that took place inside Panther headquarters. Question: Did the First Amendment's freedom of the press protect Pappas from appearing and testifying before the grand jury? Findings: No. The Court found that requiring reporters to disclose confidential information to grand juries served a "compelling" and "paramount" state interest and did not violate the First Amendment. Justice White argued that since the cases involved no government intervention to impose prior restraint, and no command to publish sources or to disclose them indiscriminately, there was no constitutional violation. Because reporters receive information from sources in confidence does not privilege them to withhold that information during a government investigation; the average citizen is often forced to disclose information received in confidence when summoned to testify in court. Pappas must appear and give testimony

Civil Liberties : Fifth Amendment – Self Incrimination Escobedo v. Illinois 378 U.S. 478 (1964) Facts: Danny Escobedo was arrested and taken to a police station for questioning. Over several hours, the police refused his repeated requests to see his lawyer. Escobedo's lawyer sought unsuccessfully to consult with his client. Escobedo subsequently confessed to murder. Questions: Was Escobedo denied the right to counsel as guaranteed by the Sixth Amendment? 2. Did the absence of counsel in effect allow Escobedo to incriminate himself? Findings: Yes. Justice Goldberg, in his majority opinion, spoke of "an absolute right to remain silent." Escobedo had not been adequately informed of his constitutional right to remain silent rather than to be forced to incriminate himself. The case has lost authority as precedent as the arguments in police interrogation and confession cases have shifted from the Sixth Amendment to the Fifth Amendment, emphasizing whether the appropriate warnings have been given and given correctly, and whether the right to remain silent has been waived.

Civil Liberties : Fifth Amendment – Self Incrimination Facts: 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. Question: 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? Findings: Yes. The Court held that prosecutors could not use statements stemming from custodial interrogation of defendants unless they demonstrated the use of procedural safeguards "effective to secure the privilege against self-incrimination." The Court noted that "the modern practice of in-custody interrogation is psychologically rather than physically oriented" and that "the blood of the accused is not the only hallmark of an unconstitutional inquisition." The Court specifically outlined the necessary aspects of police warnings to suspects, including warnings of the the right to remain silent and the right to have counsel present during interrogations. Miranda v. Arizona 384 U.S. 436 (1966)

Civil Liberties : Fifth Amendment – Self Incrimination According to the Phoenix police, Miranda repeatedly abducted, kidnapped, raped and robbed young women during this time. His searching grounds for victims were so limited though, that in March 1963, his truck was spotted and license plates recognized by the brother of an 18 year old rape victim (the victim had given the brother a description). With his description of the car and a partial license plate number, Phoenix police officers Carroll Cooley and Wilfred Young arrested Miranda, took him to the station house and placed him in a lineup. After the lineup, when Miranda asked what he did, the police implied that he was positively identified. The police got a confession out of Miranda after two hours of interrogation, without informing him of his rights. After unburdening himself to the officers, Miranda was taken to meet the rape victim for positive voice identification. Asked by officers, in her presence, whether this was the victim, Miranda said, "That's the girl." The victim stated that the sound of Miranda's voice matched that of the culprit. Miranda then wrote his confessions down. At the top of each sheet was the printed certification that the confessor makes "…this statement has been made voluntarily and of my own free will, with no threats, coercion or promises of immunity and with full knowledge of my legal rights, understanding any statement I make can and will be used against me." Despite the statement on top of the sheets that Miranda was confessing "with full knowledge of my legal right", he was not informed of his right to have an attorney present or of his right to remain silent. 73-year-old Alvin Moore was assigned to represent him at his trial. The trial took place in mid-June 1963 before Maricopa County Superior Court Judge Yale McFate. Moore objected to entering the confession by Miranda as evidence during the trial but was overruled. Mostly because of the confession, Miranda was convicted of rape and kidnapping and sentenced to 20 to 30 years on both charges. Moore appealed to the Arizona Supreme Court but the charges were upheld.

Civil Liberties : Fifth Amendment – Self Incrimination Miranda v. Arizona 384 U.S. 436 (1966)

Civil Liberties : Fifth Amendment – Self Incrimination Miranda v. Arizona 384 U.S. 436 (1966) Only Miranda's rape charge was dropped. A robbery charge was still valid and another trial was decided to be held on the rape charge (without the confession as evidence) soon after the decision. He was quickly re-sentenced to eleven years in prison for kidnapping and rape due to a confession he had made to his wife. After serving one-third of his sentence, Miranda was paroled in December 1972. After his release, he started selling autographed Miranda Warning cards for $1.50 (American Heritage). Over the next years Miranda was arrested numerous times for minor driving offenses and eventually lost the right to drive a car. He was arrested for the possession of a gun but the charges were dropped. But because this violated his parole he was sent back to Arizona State Prison for another year. After his release, Miranda spent most of his time in poorly kept bars and cheap hotels in the bad section of Phoenix. Miranda, then working as a delivery driver, participated in a card game at the La Amapola Bar. Miranda had taken on the role as a minor celebrity, passing out Miranda cards and telling his story. On January 31, 1976, a violent fight broke out and Miranda received a mortal knife wound; he was pronounced dead on arrival at Good Samaritan Hospital. He was 34 years old. Police officers apprehended a male shortly afterwards and read him his Miranda rights from a small rectangular card. However, the suspect refused to cooperate with police, and due to a lack of evidence could not be prosecuted for Miranda's murder.

Civil Liberties : Fifth Amendment – Self Incrimination Rhode Island v. Innis 446 U.S. 291 (1980) Facts: After a picture identification by the victim of a robbery, Thomas J. Innis was arrested by police in Providence, Rhode Island. Innis was unarmed when arrested. Innis was advised of his Miranda rights and subsequently requested to speak with a lawyer. While escorting Innis to the station in a police car, three officers began discussing the shotgun involved in the robbery. One of the officers commented that there was a school for handicapped children in the area and that if one of the students found the weapon he might injure himself. Innis then interrupted and told the officers to turn the car around so he could show them where the gun was located. Question: Did the police "interrogation" en route to the station violate Innis's Miranda rights? Finding: No. The Court held that the Miranda safeguards came into play "whenever a person in custody is subjected to either express questioning or its functional equivalent," noting that the term "interrogation" under Miranda included "any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the subject." The Court then found that the officers' conversation did not qualify as words or actions that they should have known were reasonably likely to elicit such a response from Innis.

Civil Liberties : Fifth Amendment – “Takings Clause” City of Euclid v. Ambler Reality Corporation 272 U.S. 365 (1926) Facts: On November 13th, 1922, an ordinance was adopted by the Village Council that established a comprehensive zoning plan for regulating and restricting the location of trades, industries, apartment houses, two-family houses, single family houses, the lot area to be built upon, the size and height of buildings etc. The expansion of the City of Cleveland’s industries into the village’s corridor made it important to have regulated and restricted land use so as to exclude residential uses from offensive trades, industries and other occupations from the residential localities. The ordinance was brought into effect on the basis that it was substantially related to public health, moral, welfare and safety. The Ambler Company without any application for revision, amendment or modification of the ordinance and without desiring to build any kind of structure applied for an injunction against the entire ordinance. The ordinance was assailed on the grounds that it deprived the company of liberty and property. However, until the company shall at least have applied for a permit to build some kind of structure and if the permit had been denied, they would have the right to obtain an injunction on the grounds that the ordinance was unreasonable in its effect upon the property in question. The question whether the power exists to forbid the erection of a building of a particular kind or particular use, is to be determined by considering the building or the real thing, not abstractly but in connection with circumstances and the locality.

Civil Liberties : Fifth Amendment – “Takings Clause” Question: Is the government (City) required to provide compensation in the event that its zoning laws cause a detriment to business, etc. Are Zoning Laws legitimate police powers? Findings: There was unquestionably a "takings" under the exercise of police power, yet that taking was not such as is inhibited by or as requires compensation under the constitution. The limitations imposed by the police power do not have to be compensated for, since the reason that they are very clear. Someone who buys a piece of land has no means of knowing whether or not it will be needed for the public use and if any need develops, it must be compensated accordingly. However, it is important to acknowledge that it should not be devoted to any uses which endanger the safety, health, welfare or morals of others and make its use a common nuisance to the public. Moreover, if the property under consideration claims a loss merely on basis of speculation without being in use or planning for some specific use by means of an application to the municipality that had been prohibited, the compensation doesn’t hold true. There was a collision between the Police Power and the Constitution of the United States (and the Constitution of the State of Ohio) but the US Supreme Court extended the rights to the local jurisdiction to decide on zoning issues that pertain to public health, welfare, moral and safety. Hence, the zoning legislation that emphasized the creation and maintenance of residential districts to be excluded from businesses and trades that would create a nuisance was considered to be valid. City of Euclid v. Ambler Reality Corporation 272 U.S. 365 (1926)

Civil Liberties : Fifth Amendment – “Takings Clause” Palazzolo v. Rhode Island (2001) Facts: Anthony Palazzolo owns a waterfront parcel of land in Rhode Island. Most of the property is salt marsh, subject to tidal flooding. The Rhode Island Resources Management Council's Coastal Resources Management Program regulations designate salt marshes as protected "coastal wetlands," on which development is greatly limited. After multiple development proposals of his were denied, Palazzolo filed an inverse condemnation action in Rhode Island Superior Court. Palazzolo asserted that the State's wetlands regulations had taken his property without compensation in violation of the Fifth and Fourteenth Amendments because the Council's action had deprived him of "all economically beneficial use" of his property. Ruling against Palazzolo, the court held that his takings claim was not ripe, that he had no right to challenge the regulations predating his acquisition of the property's title, and that he could not assert a takings claim based on the denial of all economic use of his property in light of undisputed evidence that he had $200,000 in development value remaining on an upland parcel of the property.

Civil Liberties : Fifth Amendment – “Takings Clause” Palazzolo v. Rhode Island Question: May a property owner who acquired title to the property after it was subject to wetlands regulations still bring a takings claim under the Fifth Amendment? Findings: Yes. In a 5-4 opinion delivered by Justice Anthony M. Kennedy, the Court held that "the State Supreme Court erred in finding Palazzolo's claims were unripe and in ruling that acquisition of title after the effective date of the regulations barred the takings claims. The court did not err in finding that Palazzolo failed to establish a deprivation of all economic value, for it is undisputed that the parcel retains significant worth for construction of a residence." Discussing the post-regulation acquisition of title, Justice Kennedy wrote, "were we to accept the State's rule, the post-enactment transfer of title would absolve the State of its obligation to defend any action restricting land use, no matter how extreme or unreasonable. A State would be allowed, in effect, to put an expiration date on the Takings Clause. This ought not to be the rule. Future generations, too, have a right to challenge unreasonable limitations on the use and value of land .“ See also Lucas v. South Carolina Coastal Counsel (1992).

Civil Liberties : Fifth Amendment – “Takings Clause” Kelo v. City of New London (2005 )

Civil Liberties : Fifth Amendment – “Takings Clause” Bennis v. Michigan 517 U.S. 1163 (1996) Facts: Tina Bennis' husband was convicted of gross indecency following his sexual activity with a prostitute in the couple's jointly-owned car, a 1977 Pontiac GTO with a value of $600.00. The Circuit Court allowed the abatement, but the Appeals Court reversed. The Supreme Court of Michigan reversed the appellate court's decision and re-entered the abatement order. Bennis appealed to the Supreme Court. (An abatement is a “legal fiction” that allows for civil forfeiture. It allows for the case to be presented against property when the owner cannot be found or brought to court. Its origin is in Admiralty Law.) Question: Does the abatement order entered against Bennis' car constitute a taking of private property for public use in violation of the property clauses of the Fifth and Fourteenth Amendments? Findings: Chief Justice Rehnquist held that the abatement order against Bennis' car did not violate the takings clause. Her innocence and lack of knowledge concerning her husband's illegal activity, in the couple's jointly owned car, could not serve as a defense against her vehicle's forfeiture. Furthermore, under the present circumstances, the vehicle's forfeiture did not violate Bennis‘ property rights without due process. Michigan's abatement policy, aimed at deterring criminal uses of property, lawfully transferred her vehicle to the state. As such, Michigan is not required to compensate Bennis for the vehicle's forfeiture.

Civil Liberties : Criminal Trials - Sixth Amendment Sixth Amendment “ In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”

Powell v. Alabama 287 U.S. 45 (1932) Facts: Nine black youths were accused of raping two white women while hoboing on a train. Alabama officials raced through the legal proceedings: a total of three trials took one day and all nine were sentenced to death. Alabama law required the appointment of counsel in capital cases, but the attorneys did not consult with their clients and had done little more than appear to represent them at the trial. Question: Did the trials violate the Due Process Clause of the Fourteenth Amendment? Findings: Yes. The Court held that the trials denied due process because the defendants were not given reasonable time and opportunity to secure counsel in their defense. Although Justice George Sutherland did not openly support his opinion based on the Sixth Amendment’s right-to-counsel, he implied that guarantee. This case was an early example of national constitutional protection in the field of criminal justice. Civil Liberties : Sixth Amendment – Counsel

Civil Liberties : Sixth Amendment – Counsel The Key Players in the Scottsboro Case No one deserves more blame for the long ordeal suffered by the Scottsboro Boys than does a lower class white woman from Huntsville named Victoria Price. It was her accusation of gang rape aboard a Chattanooga to Memphis freight train, repeated in trial after trial for six years, that led to one of the most protracted and tumultuous legal battles Price was the promiscuous, hard drinking, hard swearing daughter of a Huntsville widow who lived in a poor, racially mixed section of town. She made love in box cars and fields, slept in hobo jungles, and rode the rails in a pair of beaten overalls. A defense affidavit of a one-time neighbor of Price's described her as "a common street prostitute of the lowest type," a woman who would "be out at all hours of the night and curse and swear, and be a general nuisance to the negro population." Another acquitance rounded up by the defense said he saw Price "drunk and in a fight with another woman and she had her clothes up around her body and she had on only two garments, and exposed her private parts." A third acquaintance swore he had overheard Price asking "negro men" the size of their "private parts."

Civil Liberties : Sixth Amendment – Counsel The Key Players in the Scottsboro Case

Civil Liberties : Sixth Amendment – Counsel Gideon v. Wainwright 372 U.S. 335 (1963) Facts: Gideon was charged in a Florida state court with a felony for breaking and entering. He lacked funds and was unable to hire a lawyer to prepare his defense. When he requested the court to appoint an attorney for him, the court refused, stating that it was only obligated to appoint counsel to indigent defendants in capital cases. Gideon defended himself in the trial; he was convicted by a jury and the judge sentenced him to five years in a state prison

Civil Liberties : Sixth Amendment – Counsel Gideon v. Wainwright Question: Did the state court's failure to appoint counsel for Gideon violate his right to a fair trial and due process of law as protected by the Sixth and Fourteenth Amendments? Findings: In a unanimous opinion, the Court held that Gideon had a right to be represented by a court-appointed attorney and, in doing so, overruled its 1942 decision of Betts v. Brady . In this case the Court found that the Sixth Amendment's guarantee of counsel was a fundamental right, essential to a fair trial, which should be made applicable to the states through the Due Process Clause of the Fourteenth Amendment. Justice Black called it an "obvious truth" that a fair trial for a poor defendant could not be guaranteed without the assistance of counsel. Those familiar with the American system of justice, commented Black, recognized that "lawyers in criminal courts are necessities, not luxuries."

Civil Liberties : Sixth Amendment – Trials Wong Wing v. U.S. 163 U.S. 228 (1896) Facts: The Chinese Exclusion Act imposed imprisonment at hard labor and deportation to Chinese persons convicted of unlawful entry to or presence in the United States. Wong Wing was charged under the Act. A commissioner of the Circuit Court (who was not a judge) found that Wong Wing was an unlawful alien and sentenced him to 60 days at hard labor followed by deportation to China. Wong Wing sought a writ of habeas corpus, but it was denied. He appealed to the Supreme Court. Question: Does penalty of imprisonment at hard labor and deportation without a jury trial constitute a violation of the Fifth and Sixth Amendments Findings: Yes. The imprisonment provision of the Act is void. Congress may deport without a jury trial, but imprisonment at hard labor is an offense calling for judicial trial to establish the guilt of the accused. "It is not consistent with our theory of government that the legislature should, after having defined an offense as an infamous crime, find the fact of guilt and adjudge the punishment by one of its own agents."

Civil Liberties : Sixth Amendment – Trials Duncan v. Louisiana 391 U.S. 145 (1968) Facts: Gary Duncan, a black teenager in Louisiana, was found guilty of assaulting a white youth by allegedly slapping him on the elbow. Duncan was sentenced to sixty days in prison and fined $150.00 Duncan's request for a jury trial was denied. Question: Was the State of Louisiana obligated to provide a trial by jury in criminal cases such as Duncan's? Findings: Yes. The Court held that the Sixth Amendment guarantee of trial by jury in criminal cases was "fundamental to the American scheme of justice," and that the states were obligated under the Fourteenth Amendment to provide such trials. Petty crimes, defined as those punishable by no more than six months in prison and a $500.00 fine, were not subject to the jury trial provision

Civil Liberties : Sixth Amendment – Trials Batson v. Kentucky 476 U.S. 79 (1986) Facts: Batson, a black man, was on trial charged with second-degree burglary and receipt of stolen goods. During the jury selection, the prosecutor used his peremptory challenges to strike the four black persons on the venire, resulting in a jury composed of all whites. Batson was convicted on both of the charges against him. Question: Did the prosecutor's use of peremptory challenges to exclude the four blacks from the jury violate Batson's Sixth and Fourteenth Amendment rights to a fair jury trial and his Fourteenth Amendment right to equal protection of the laws? Findings: Yes. The Court found that the prosecutor's actions violated the Sixth and Fourteenth Amendments of the Constitution. Relying on precedent's set in Strauder v. West Virginia (1880) and Swain v. Alabama (1965), Justice Powell held that racial discrimination in the selection of jurors not only deprives the accused of important rights during a trial, but also is devastating to the community at large because it "undermines public confidence in the fairness of our system of justice." Without identifying a "neutral" reason why the four blacks should have been excluded from the jury, the prosecutor's actions were in violation of the Constitution.

Civil Liberties : Eighth Amendment Eighth Amendment “ Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

Civil Liberties : Eighth Amendment Louisiana v. Resweber 329 U.S. 459 (1947) Facts: Willie Francis, a sixteen year old black youth, was convicted of murder in Louisiana and sentenced to death by electrocution. At his execution, Francis was strapped in the chair and the executioner threw the switch. Electric current passed through Francis' body but it not sufficiently enough to kill him. The malfunction required a repair of the chair. In the meantime Francis sought to prevent the second execution attempt. Question: Did the second attempted execution deny Francis due process of law because of double jeopardy guaranteed by the Fifth Amendment and because of cruel and unusual punishment of the Eighth Amendment? Findings: No. The equipment failure does not bring due process into play. This was not the wanton infliction of unnecessary pain in the execution of the death sentence. And the cruelty of the Eighth Amendment refers to cruelty in method, not that cruelty which is part of the actual suffering accompanying a lawful sentence of death.

Civil Liberties : Eighth Amendment Furman v. Georgia 408 U.S. 238 (1972) Facts: Furman was burglarizing a home when a family member discovered him. During his attempt to flee, Furman tripped and fell. Furman stated that the gun that he was carrying went off and killed a resident of the home. He was convicted of murder and sentenced to death. Question: Does the imposition and carrying out of the death penalty in these cases constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments? Findings: Yes. The Court's per curiam opinion held that the imposition of the death penalty in these cases constituted cruel and unusual punishment and violated the Constitution. In over two hundred pages of concurrence and dissents, the justices articulated their views on this controversial subject. Only Justices Brennan and Marshall believed the death penalty to be unconstitutional in all instances. Other concurrences focused on the arbitrary nature with which death sentences have been imposed, often indicating a racial bias against black defendants. The Court's decision forced states and the national legislature to rethink their statutes for capital offenses to assure that the death penalty would not be administered in a capricious or discriminatory manner.

Civil Liberties : Eighth Amendment Gregg v. Georgia 428 U.S. 153 (1976) Facts: A jury found Gregg guilty of armed robbery and murder and sentenced him to death. On appeal, the Georgia Supreme Court affirmed the death sentence except as to its imposition for the robbery conviction. Gregg challenged his remaining death sentence for murder, claiming that his capital sentence was a "cruel and unusual" punishment that violated the Eighth and Fourteenth Amendments. This case is one of the five "Death Penalty Cases.” Findings: No. In a 7-to-2 decision, the Court held that a punishment of death did not violate the Eighth and Fourteenth Amendments under all circumstances. In extreme criminal cases, such as when a defendant has been convicted of deliberately killing another, the careful and judicious use of the death penalty may be appropriate if carefully employed. Georgia's death penalty statute assures the judicious and careful use of the death penalty by requiring a bifurcated proceeding where the trial and sentencing are conducted separately, specific jury findings as to the severity of the crime and the nature of the defendant, and a comparison of each capital sentence's circumstances with other similar cases. Moreover, the Court was not prepared to overrule the Georgia legislature's finding that capital punishment serves as a useful deterrent to future capital crimes and an appropriate means of social retribution against its most serious offenders. Question: Is the imposition of the death sentence prohibited under the Eighth and Fourteenth Amendments as "cruel and unusual" punishment?

Civil Liberties : Eighth Amendment Rummel v. Estelle 445 U.S. 263 (1980) Facts: After being convicted of three felonies over a period of fifteen years, William James Rummel was given a life prison sentence as mandated by a Texas recidivist statute. Rummel's offenses involved approximately $230, and all of the offenses were nonviolent. Lower courts rejected Rummel's challenge to the sentence. Question: Did Rummel's life sentence under the Texas recidivist law constitute cruel and unusual punishment in violation of the Eighth Amendment? Findings: No. In a 5-4 decision, the Court held that the life sentence imposed by Texas law did not constitute cruel and unusual punishment under the Eighth and Fourteenth Amendments. The Court held that Texas had a significant interest in dealing "in a harsher manner with those who by repeated criminal acts have shown that they are simply incapable of conforming to the norms of society." The Court also noted that Texas had "a relatively liberal policy of granting 'good time' credits to its prisoners," indicating that there was a possibility that Rummel would not be imprisoned for the rest of his life.

Civil Liberties : Eighth Amendment Thompson v. Oklahoma 487 U.S. 815 (1988) Facts: At the age of fifteen years Thompson was tried as an adult, convicted of first degree murder, and sentenced to death. On appeal, the Court of Criminal Appeals of Oklahoma affirmed. The Supreme Court granted Thompson certiorari Question: Would the execution of a 15-year old violate the Eighth Amendment's prohibition against "cruel and unusual punishments"? Findings: Yes. After noting that the Eighth Amendment's prohibition against "cruel and unusual punishments" applied to the states through the Fourteenth Amendment, the Court held that the execution of a person under the age of sixteen was unconstitutional. In noting the uniform ban among all relevant state statutes against the execution of one under the age of sixteen, the Court explained that such an act would violate the "evolving standards of decency that mark the progress of a maturing society." The case was reversed and remanded. Roper v. Simmons (2005) extended the minimum age for execution to eighteen years of age.

Civil Liberties : Eighth Amendment Kennedy v. Louisiana 554 U.S. ____ (2008)

Module 2E - Civil Liberties : Privacy Objectives: Understand the evolution of a concept of “individual privacy” in Constitutional law Discuss the nuances of privacy cases, in particular the possibility of its expansion to new domains such as euthanasia Discuss the most significant privacy cases Understand the relation of obscenity to the First Amendment 5. Learn the various tests applied to discern obscenity

Civil Liberties : Ninth Amendment - Privacy We often refer to our "right to privacy," but in fact there is no right to privacy in the same sense as the right of free speech or right against unreasonable search and seizure. The US constitution is silent on privacy, although the First, Fourth and Fifth amendments have been interpreted to include privacy rights. Our legal concept of privacy is often said to begin with the famous law review article of Warren and Brandeis, although they were in particular addressing the issue of privacy and the press. Privacy is covered in various court cases, such as the Supreme Court's decision in 1967 that affirmed the right to private communications by outlawing wiretapping (except under certain court-sanctioned circumstances). Other amendments protect our freedom to make certain decisions about our bodies and our private lives without interference from the government. Privacy is a contemporary issue; the Framers did not foresee that that privacy could be extended beyond protection from unreasonable search and seizure. The Constitution has only interpreted privacy in one area, sexual behavior in terms of contraception, abortion, and sexual orientation, and with substantial limitations. Ninth Amendment “ The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.”

Civil Liberties : Privacy – Martial Life Griswold v. Connecticut 381 U.S. 479 (1965) Facts: 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 counseling, and other medical treatment, to married persons for purposes of preventing conception. Question: 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? Findings: Yes. Though the Constitution does not explicitly protect a general right to privacy, the various guarantees within the Bill of Rights create penumbras, or zones, that establish a right to privacy. Together, the First, Third, Fourth, and Ninth Amendments, create a new constitutional right, the right to privacy in marital relations. The Connecticut statute conflicts with the exercise of this right and is therefore null and void.

Civil Liberties : Privacy - Abortion Roe v. Wade 410 U.S. 113 (1973) Facts: Roe, a Texas resident, sought to terminate her pregnancy by abortion. Texas law prohibited abortions except to save the pregnant woman's life. After granting certiorari, the Court heard arguments twice. Question: Is there an unwritten right of privacy in the Ninth Amendment to abortion? Findings: Yes. The Court held that a woman's right to an abortion fell within the right to privacy, recognized in Griswold v. Connecticut (1965), protected by the Fourteenth Amendment. The decision gave a woman total autonomy over the pregnancy during the first trimester and defined different levels of state interest for the second and third trimesters. As a result, the laws of Forty six states were affected by the Court's ruling. See also Akron v. Akron Center for Reproductive Health (1983).

Civil Liberties : Privacy - Abortion Webster v. Reproductive Health Services 492 U.S. 490 (1989) Facts: In 1986, the state of Missouri enacted legislation that placed a number of restrictions on abortions. The statute's preamble indicated that "[t]he life of each human being begins at conception," and the law codified the following restrictions: public employees and public facilities were not to be used in performing or assisting abortions unnecessary to save the mother's life; encouragement and counseling to have abortions was prohibited; and physicians were to perform viability tests upon women in their twentieth (or more) week of pregnancy. Lower courts struck down the restrictions. Question: Did the Missouri restrictions unconstitutionally infringe upon the right to privacy or the Equal Protection Clause of the Fourteenth Amendment?

Civil Liberties : Privacy - Abortion Webster v. Reproductive Health Services Finding: No. The Court held that none of the challenged provisions of the Missouri legislation were unconstitutional. First, the Court held that the preamble had not been applied in any concrete manner for the purposes of restricting abortions, and thus did not present a constitutional question. Second, the Court held that the Due Process Clause did not require states to enter into the business of abortion, and did not create an affirmative right to governmental aid in the pursuit of constitutional rights. Third, the Court found that no case or controversy existed in relation to the counseling provisions of the law. Finally, the Court upheld the viability testing requirements, arguing that the State's interest in protecting potential life could come into existence before the point of viability. The Court emphasized that it was not revisiting the essential portions of the holding in Roe v. Wade (1973).

Civil Liberties : Privacy - Abortion Planned Parenthood v. Casey 505 U.S. 833 (1992) Facts: The Pennsylvania legislature amended its abortion control law in 1988 and 1989. Among the new provisions, the law required informed consent and a twenty four hour waiting period prior to the procedure. A minor seeking an abortion required the consent of one parent (the law allows for a judicial bypass procedure). A married woman seeking an abortion had to indicate that she notified her husband of her intention to abort the fetus. These provisions were challenged by several abortion clinics and physicians. A federal appeals court upheld all the provisions except for the husband notification requirement. Question: Can a state require women who want an abortion to obtain informed consent, wait twenty four hours, and, if minors, obtain parental consent, without violating their right to abortions as guaranteed by Roe v. Wade ? Findings: In a 5-to-4 decision, the Court reaffirmed Roe , but it upheld most of the Pennsylvania provisions. For the first time, the justices imposed a new standard to determine the validity of laws restricting abortions. The new standard asks whether a state abortion regulation has the purpose or effect of imposing an "undue burden," which is defined as a "substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability." Under this standard, the only provision to fail the undue-burden test was the husband notification requirement. The opinion for the Court was unique: It was crafted and authored by three justices.

Civil Liberties : Privacy – “Right to Die” Washington v. Glucksberg 521 U.S. 702 (1997) Facts: Dr. Harold Glucksberg -- along with four other physicians, three terminally ill patients who have since died, and a nonprofit organization that counsels individuals contemplating physician assisted-suicide -- brought this suit challenging the state of Washington's ban on physician assisted-suicide. The State of Washington has historically criminalized the promotion of suicide attempts by those who "knowingly cause or aid another person to attempt suicide." Glucksberg alleged that Washington's ban was unconstitutional. Following a District Court ruling favoring Glucksberg and his fellow petitioners, the Ninth Circuit affirmed and the Supreme Court granted Washington certiorari. Question: Did Washington's ban on physician assisted-suicide violate the Fourteenth Amendment's Due Process Clause by denying competent terminally ill adults the liberty to choose death over life? Finding: No. Analyzing the Due Process Clause, the Court focused on two primary aspects: the protection of our nation's objective fundamental, historically rooted, rights and liberties; and the cautious definition of what constitutes a due process liberty interest. The Court held that the right to assisted suicide is not a fundamental liberty interest protected by the Due Process Clause since its practice has been, and continues to be, offensive to our national traditions and practices. Moreover, the Court held that Washington's ban was rationally related to the state's legitimate interest in protecting medical ethics, shielding disabled and terminally ill people from prejudice which might encourage them to end their lives, and, above all, the preservation of human life.

Civil Liberties : Privacy – Homosexuality Bowers v. Hardwick 478 U.S . 186 (1986) Facts: Michael Hardwick was observed by a Georgia police officer engaging in oral sex with another adult male in the bedroom of his home. After being charged with violating a Georgia statute that criminalized homosexual sodomy, Hardwick challenged the statute's constitutionality in Federal District Court. Following a ruling that Hardwick failed to state a claim, the court dismissed. On appeal, the Court of Appeals reversed and remanded, holding that Georgia's statute was unconstitutional. Question: Does the Constitution confer a fundamental right upon homosexuals to engage in consensual sodomy, thereby invalidating the laws of many states which make such conduct illegal? Findings: No. The divided Court found that there was no constitutional protection for acts of sodomy, and that states could outlaw those practices. Justice White argued that the Court has acted to protect rights not easily identifiable in the Constitution only when those rights are "implicit in the concept of ordered liberty" ( Palko v. Connecticut 1937) or when they are "deeply rooted in the Nation's history and tradition" ( Griswold v. Connecticut 1965). The Court held that the right to commit sodomy did not meet either of these standards. White feared that guaranteeing a right to sodomy would be the product of "judge-made constitutional law" and send the Court down the road of illegitimacy.

Civil Liberties : Privacy – Homosexuality Lawrence and Garner v. Texas 539 U.S. 558 (2003) Facts: Responding to a reported, but false, weapons disturbance in a private residence, Houston police entered John Lawrence's apartment and saw him and another man, Tyron Garner, engaging in oral sex. 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. 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 (1986), controlling. Question: Do the criminal convictions of John Lawrence and Tyron Garner under the Texas Homosexual Conduct Law, which criminalizes sexual intimacy by gay couples, but not identical behavior by heterosexual 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 (1986), be overruled?

Civil Liberties : Privacy – Homosexuality Lawrence and Garner v. Texas 539 U.S. 558 (2003) Findings: Yes. The Court held that the Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates the Due Process Clause. After explaining what it deemed the doubtful and overstated premises of Bowers , the Court reasoned that the case turned on whether Lawrence and Garner were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause. "Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government," wrote Justice Kennedy. "The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual," continued Justice Kennedy. Accordingly, the Court overruled Bowers. Justice Sandra Day O'Connor filed an opinion concurring in the judgment. Justices Clarence Thomas, Antonin Scalia, and William Rehnquist dissented.

Civil Liberties :First Amendment - Obscenity Roth v. United States 354 U.S. 476 (1957) Facts: Roth operated a bookstore in New York and was convicted of mailing obscene circulars and an obscene book in violation of a federal obscenity statute. Roth's case was combined with Alberts v. California , in which a California obscenity law was challenged by Alberts after his similar conviction for selling lewd and obscene books in addition to composing and publishing obscene advertisements for his products . Question: Did either the federal or California's obscenity restrictions, prohibiting the sale or transfer of obscene materials through the mail, impinge upon the freedom of expression as guaranteed by the First Amendment? Findings No. The Court held that obscenity was not "within the area of constitutionally protected speech or press." The Court noted that the First Amendment was not intended to protect every utterance or form of expression, such as materials that were "utterly without redeeming social importance." The Court held that the test to determine obscenity was "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest." The Court held that such a definition of obscenity gave sufficient fair warning and satisfied the demands of Due Process. Brennan later reversed his position on this issue in Miller v. California (1973).

Civil Liberties :First Amendment - Obscenity Barnes v. Glen Theater 501 U.S. 560 (1991) Facts: Glen Theatre and the Kitty Kat Lounge in South Bend, Indiana, operated entertainment establishments with totally nude dancers. An Indiana law regulating public nudity required dancers to wear "pasties" and a “g-string" when they perform. The Theatre and Lounge sued to stop enforcement of the statute. Question: Does a state prohibition against complete nudity in public places violate the First Amendment's freedom of expression guarantee? Findings: No. Chief Justice Rehnquist, in a plurality opinion, conceded that nude dancing was a form of expressive activity. But, he maintained that the public indecency statute is justified despite the incidental limitations on such expressive activity. The statute "furthers a substantial government interest in protecting order and morality." The proscription on public nudity is unrelated to the erotic message the dancers seek to convey.

Civil Liberties :First Amendment - Obscenity Miller v. California 413 U.S. 15 (1973) Facts: Miller, after conducting a mass mailing campaign to advertise the sale of "adult" material, was convicted of violating a California statute prohibiting the distribution of obscene material. Some unwilling recipients of Miller's brochures complained to the police, initiating the legal proceedings. Question: Is the sale and distribution of obscene materials by mail protected under the First Amendment's freedom of speech guarantee? Findings: No. In a 5-4 decision, the Court held that obscene materials did not enjoy First Amendment protection. The Court modified the test for obscenity established in Roth v. United States (1957) and Memoirs v. Massachusetts (Fannie Hill) (1966), holding that "[t]he basic guidelines for the trier of fact must be: (a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest. . . (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value ." The Court rejected the "utterly without redeeming social value" test of the Fanny Hill decision .

Civil Liberties :First Amendment - Obscenity Renton v. Playtime Theaters Inc. 475 U.S. 41 (1986) Facts: The city of Renton, Washington, enacted a zoning ordinance that prohibited adult motion picture theaters from locating with in 1,000 feet of "any residential zone, single- or multiple-family dwelling, church, park, or school." Playtime Theatres, Inc., challenged the ordinance and sought a permanent injunction against its enforcement. Question: Did the Renton ordinance violate either the First or Fourteenth Amendment? Findings: The Court held that the zoning ordinance did not violate the First and Fourteenth Amendments. The Court held that the ordinance was a form of time, place, and manner regulation, not a ban on adult theaters altogether. The Court reasoned that the law was not aimed at the content of the films shown at adult motion picture theaters, "but rather the secondary effects of such theaters on the surrounding community." The Court found that the ordinance was designed to serve a substantial governmental interest in preserving the quality of life and allowed for "reasonable alternative avenues of communication."

Fourteenth Amendment: Equal Protection – Civil Rights 42 U.S.C. 1983 (Civil Rights Act of 1871) 42 U.S.C. 1983, also known as the Ku Klux Klan Act, was passed in order to deal with the growing problem of anti-Reconstruction groups such as the KKK who committed terrorists acts against both white Reconstruction supporters and blacks. The law allowed the stationing of the U.S. Army in the southern states because governors of some southern states were either unwilling or unable to deal with the KKK and similar paramilitary, terrorist groups. However, most importantly, the law allowed civil lawsuits against state officials in both state and federal courts. Section1: Every person who under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia , subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, Suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

Fourteenth Amendment: Equal Protection – Civil Rights R.S. 1979 42 U.S.C. 1983 (Civil Rights Act of 1871) Monroe v. Pape 365 U.S. 167 (1961) Facts: Thirteen Chicago police officers searched the Monroe’s home without a warrant. During the search, the police officers made the Monroe family stand naked in the living room while they ransacked the house. Mr. Monroe was taken to the police station and held on open charges, in connection with a murder investigation, for ten hours. During his interrogation, Mr. Monroe was denied an attorney, not allowed to make a phone call, and denied a hearing before a magistrate. Mr. Monroe was then released without charges. Monroe then filed a lawsuit against the City of Chicago and the thirteen police officers alleging that the police officers and the City abused their powers under color of law. Question: Does Monroe have a right to sue the police officers and the City under R.S. 1979 42 U.S.C. 1983? Finding: Yes. The Court ruled that a civil lawsuit against the personnel involved, but not the municipality, is an allowable remedy for civil rights violations. The Court later allowed for lawsuits against municipalities in Monell v. Dept. of Social Services 436 U.S. 658 (1978), but not under vicarious liability.

Fourteenth Amendment: Equal Protection – Civil Rights U.S. v. Cruikshank 92 U.S. 542 (1876) Facts: Following disputed gubernatorial and local elections in Louisiana, an armed white mob engaged in armed combat with a Black Militia at Colfax. The white mob defeated the Black Militia after three days of fighting, through treachery and the use of a cannon, but it was alleged that the white mob murdered an estimated two hundred black militia members and civilians after they surrendered. Only one man, Benjamin Brimm, survived; he was shot in the head but feigned death. Brimm would serve as the sole witness in the later trial. The U.S. Army arrived the next day and attempted to round up the members of the white mob. However, local recalcitrance resulted in only nine men being brought to trial. The actual conflict began when the Black Militia occupied the Colfax courthouse, and rumors spread that blacks had raped and murdered the daughter of a local attorney, William Rutland, who ironically was supposed to be the chief negotiator. In fact, some of the black members had entered the attorney’s home with the intention of ransacking it, but did not harm the attorney. Rutland’s daughter had actually drowned shortly before the intrusion, but the sight of her casket on the doorstep led to paranoia. Soon rumors spread that blacks had armed themselves and were planning to “exterminate” whites. Blacks in the local countryside fled their homes in fear of retaliation from white mobs and congregated in the Colfax courthouse under the protection of the Black Militia.

Fourteenth Amendment: Equal Protection – Civil Rights U.S. v. Cruikshank 92 U.S. 542 (1876) Question: Does the federal government have the authority to prosecute, under 42 U.S.C. 1983, members of vigilante and terrorist groups who engage in conspiracy to prevent African-Americans from exercising their political rights in state and local elections? Do the First Amendment Right of Assembly and the Second Amendment Right to Bear Arms apply to the states? Finding: No and No. The First Amendment Right of Assembly and the Second Amendment Right to Bear Arms do not apply to the states. The Court ruled that the Enforcement Act of 1870, which was based on the Bill of Rights and Fourteenth Amendment, applied only to actions committed by the state, and that it did not apply to actions committed by individuals or private conspiracies. This meant that the Federal government could not prosecute such cases. The court said plaintiffs who believed their rights violated had to seek protection from the state. Louisiana did not prosecute any of the perpetrators of the Colfax massacre. The ruling in this case led to the proliferation of the KKK and other similar paramilitary, terrorist organizations.

“ Gathering the dead after the Colfax Massacre” Harper's Weekly, May 10, 1873

Fourteenth Amendment: Equal Protection – Civil Rights The Civil Rights Cases 109 U.S. 3 (1883) Facts: Sections 1 and 2 of the Civil Rights Act of 1875 prohibited racial discrimination in hotels, theaters, restaurants, transportation, and other public accommodations. Five separate cases, stemming from violations across the country and in various types of public accommodation, were consolidated into one case. Question: Is the Civil Rights Act of 1875, which prohibits racial discrimination in public accommodations that are privately owned, a legitimate exercise of congressional power? Findings: No. The Civil Rights Act of 1875 is unconstitutional. The Court, in an 8-1 decision, found that the Fourteenth Amendment was intended to protect against invidious racial discrimination by the states and not by individuals or private businesses. Justice Bradley stated, “It is State action of a particular character that is prohibited. Individual invasion of individual rights is not the subject matter of the amendment. It has a deeper and broader scope. It nullifies and makes void all State legislation, and State action of every kind, which impairs the privileges and immunities of citizens of the United States or which injures them in life, liberty or property without due process of law, or which denies to any of them the equal protection of the laws.”

Fourteenth Amendment: Equal Protection – Civil Rights Yick Wo v. Hopkins 118 U.S. 356 (1886) Facts: The City of San Francisco passed an ordinance in 1880 prohibiting commercial laundering in wooden buildings without a permit. Most of the City’s laundering was done in wooden buildings, and about ninety percent of the owners were Chinese. None of the Chinese owners were allowed a permit, while none of the non-Chinese owners were denied. Yick Wo and one hundred fifty Chinese owners were fined and imprisoned for violating the ordinance. Yick Wo, in many years of business, had never failed the Fire Warden’s inspections. Question: Did the ordinance violate Yick Wo’s Equal Protection right under the Fourteenth Amendment? Finding: Yes. The ordinance is “facially neutral,” but discriminatory in its execution. Even though most of the respondents in this case were not U.S. citizens, they were still entitled to Equal Protection under the Fourteenth Amendment. Yick Wo would lose some of its precedence in mitigating de facto discrimination in the execution of laws as a result of the 1896 case of Plessy v. Ferguson , which introduced the doctrine of Separate-but-Equal. The Separate-but-Equal doctrine led to the proliferation of “Jim Crow” laws primarily in the southern states. The Warren Court of the 1960s later revived Yick Wo to strike down “Jim Crow” laws in southern states.

Fourteenth Amendment: Equal Protection – Civil Rights Plessy v. Ferguson 163 U.S. 537 (1896) Facts: Adolph Plessy, a Creole and 1/8 black and 7/8 white, sat in the “whites only” section of a East Louisiana Railroad train. Plessy’s action violated an 1890 Louisiana Law, Act 111, which required “Separate-but-Equal” railway accommodations for blacks and whites. Plessy was subsequently arrested and jailed. Question: Does the Louisiana Law, Act 111, violate the Equal Protection Clause of the Fourteenth Amendment? Adolph Plessy

Fourteenth Amendment: Equal Protection – Civil Rights Plessy v. Ferguson 163 U.S. 537 (1896) Findings: No. Justice Henry Billings Brown, writing for the 7-1 majority, noted that the Equal Protection Clause of the Fourteenth Amendment was intended to eliminate political, but not “social” discrimination. “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 unsatisfactory to either.“ The Court reasoned that Separate-but-Equal satisfied the Equal Protection Clause. This decision, in effect, upheld the constitutionality of the Separate-but-Equal doctrine, also known as “Jim Crow,” of racial discrimination, which would remain in place until overruled by the 1954 case of Brown v. Topeka Board of Education. See also The Civil Rights Cases (1883), Yick Wo v. Hopkins (1886), and Sweatt v. Painter (1950). Justice John Marshall Harlan, a former slave-owner, wrote the lone dissent. Justice Harlan was also the lone dissenter in The Civil Rights Cases (1883). Harlan stated, “But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.”

Civil Rights: Fourteenth Amendment – Equal Protection - Discrimination Sweatt v. Painter 339 U.S. 622 (1950) Facts: Herman Sweatt, a black man, applied to the University of Texas Law School and was denied admission on the grounds of race. Texas did not have a public law school for blacks, but at the time of Sweat’s lawsuit in 1946 hastily constructed one in Houston. The Separate-but-Equal law school was vastly inferior to the state law school in many ways. Question: Did the State of Texas violate the Equal Protection Clause of the Fourteenth Amendment? Finding: Yes. The Court acknowledged the inferiority of the new law school and required that Sweatt be allowed to enter the University of Texas Law School in respect of his right to equal protection. While this case did not end Separate-but-Equal, it is considered an important victory in the NAACP’s use of the federal judicial system to advance civil rights. Thurgood Marshall argued the case before the Supreme Court. Charles Hamilton Houston

Civil Rights: Fourteenth Amendment – Equal Protection - Discrimination Brown v. Topeka Board of Education 347 U.S. 483 (1954) Facts: Under Plessy v Ferguson’s (1898) “Separate- but-Equal” provision, many schools discriminated against the admission of black children. Question: Is discrimination against black children a violation of the Fourteenth Amendment’s Equal Protection Clause? Findings: Yes. Despite “Separate-but-Equal” facilities, salaries, and buildings, racial discrimination is detrimental to the wellbeing of black children. See also Missouri ex rel. Gaines v. Canada, et al. (1938) and Sweatt v. Painter ( 1950) Linda Brown (left)

Civil Rights: Fourteenth Amendment – Equal Protection - Discrimination Loving v. Virginia 388 U.S. 1 (1967) Facts: In 1958, Mildred Jeter, a black woman, and Richard Loving, a white man, were married in the District of Columbia. The Lovings returned to Caroline County, Virginia shortly thereafter. The couple was then charged with violating the state's antimiscegenation statute, which banned inter-racial marriages. The Lovings were found guilty and sentenced to a year in jail. The trial judge suspended the sentence provided that the Lovings leave Virginia and not return for twenty five years. The Lovings moved to D.C. but surreptitiously returned to Caroline County, VA. Question: Did Virginia's antimiscegenation law violate the Equal Protection Clause of the Fourteenth Amendment? Findings: Yes. In a unanimous decision, the Court held that distinctions drawn according to race were generally "odious to a free people" and were subject to "the most rigid scrutiny" under the Equal Protection Clause. The Virginia law, the Court found, had no legitimate purpose "independent of invidious racial discrimination." The Court rejected the state's argument that the statute was legitimate because it applied equally to both blacks and whites and found that racial classifications were not subject to a “Rational Purpose" test under the Fourteenth Amendment. Mildred & Richard Loving

Civil Rights: Fourteenth Amendment – Equal Protection – Discrimination Washington v. Davis 547 U.S. 813 (1976) Facts: Two African-American applicants, Harley and Sellers, to the D.C. police department were rejected after failing Test 21, a required examination of verbal ability used for many U.S. Civil Service positions. The passing score was 40 out of 80 for entrance into the D.C. Police Training Program. Harley and Sellers then filed suit against the D.C. Police Commissioner and Commissioner of the U.S. Civil Service alleging invidious discrimination by way of an exam that they argue has no relationship to job performance, therefore, violating the implied right of Equal Protection under the Due Process Clause of the Fifth Amendment. Question: Did Test 21 and other U.S. Civil Service exams, violate the implied Equal Protection right under the Due Process Clause of the Fifth Amendment? Finding: No. Test 21 and other similar U.S. Civil Service exams are racially neutral, prima facie , even though they may have a racially disproportionate impact. “Though the Due Process Clause of the Fifth Amendment contains an equal protection component prohibiting the Government from invidious discrimination, it does not follow that a law or other official act is unconstitutional solely because it has a racially disproportionate impact regardless of whether it reflects a racially discriminatory purpose.” This is an important case: the government must have an intent to discriminate. It is this intention to discriminate by the government, and not the results of tests, as in this case, that the Equal Protection right of the Fifth and Fourteenth Amendments is designed to protect against.

Civil Rights: Fourteenth Amendment – Equal Protection – Representation Shaw v. Reno 509 U.S. 630 (1993) Facts: As a result of population changes provided by the 1990 Census and in compliance with the 1965 Voting Rights Act, a new, primarily African-American, district (called a “majority-minority district”) was created in the state of North Carolina. The North Carolina General Assembly submitted the redistricting plan, illustrating the new majority-minority district, to the Justice Department (Attorney General). However, the Attorney General rejected the redistricting plan and proposed that an additional majority-minority district be created. North Carolina submitted a new plan, but the second district created was 260 km long, wound largely north and south through the state, and at points so narrow as to only include Interstate 85. Justice O’Connor describes the Twelfth District: “The second majority-black district, District 12, is even more unusually shaped. It is approximately 160 miles long and, for much of its length, no wider than the I-85 corridor. It winds in snake like fashion through tobacco country, financial centers, and manufacturing areas "until it gobbles in enough enclaves of black neighborhoods. Northbound and southbound drivers on I-85 sometimes find themselves in separate districts in one county, only to "trade" districts when they enter the next county. Of the 10 counties through which District 12 passes, 5 are cut into 3 different districts; even towns are divided. At one point, the district remains contiguous only because it intersects at a single point with two other districts before crossing over them. One state legislator has remarked that "`[i]f you drove down the interstate with both car doors open, you'd kill most of the people in the district.'" Washington Post Apr. 20, 1993, p. A4. The district even has inspired poetry: "Ask not for whom the line is drawn; it is drawn to avoid thee.“ “Would Vince Lombardi Have Been Right If He Had Said: "When It Comes to Redistricting, Race Isn't Everything, It's the Only Thing"?

Civil Rights: Fourteenth Amendment – Equal Protection – Representation Shaw v. Reno 509 U.S. 630 (1993) Facts: The Attorney General accepted North Carolina’s revised redistricting plan, but the North Carolina Republican Party brought suit against Attorney General, Janet Reno, in federal district court arguing that the creation of the Twelfth District is in effect political gerrymandering. See Pope v. Blue (1992) and Davis v. Bandemer (1986). The federal district dismissed the claim. Five residents of Durham County then brought suit in federal district court arguing this time that the redistricting was in effect racial, not political, gerrymandering. Justice O’Connor states the argument of the five residents, “[t]he General Assembly's revised reapportionment plan violated several provisions of the United States Constitution, including the Fourteenth Amendment. They alleged that the General Assembly deliberately "create[d] two Congressional Districts in which a majority of black voters was concentrated arbitrarily - without regard to any other considerations, such as compactness, contiguousness, geographical boundaries, or political subdivisions" with the purpose "to create Congressional Districts along racial lines" and to assure the election of two black representatives to Congress.” In other words, the creation of the Twelfth District, is in effect racial segregation, which violates the respondents’ Equal Protection right under the Fourteenth Amendment. Because race is a “suspect class,” it is subject to what the Court calls “Strict Scrutiny.” See Korematsu v. U.S . 1944. The government must provide a compelling interest and legislation must be narrowly tailored. Question: Does the redistricting plan, creation of a majority-minority district, violate the Equal Protection Clause of the Fourteenth Amendment?

Civil Rights: Fourteenth Amendment – Equal Protection – Representation Shaw v. Reno 509 U.S. 630 (1993) Finding: Yes. Justice O’Connor stated in the majority opinion: “Classifications of citizens based solely on race are by their nature odious to a free people whose institutions are founded upon the doctrine of equality, because they threaten to stigmatize persons by reason of their membership in a racial group and to incite racial hostility. Thus, state legislation that expressly distinguishes among citizens on account of race - whether it contains an explicit distinction or is "unexplainable on grounds other than race," Arlington Heights v. Metropolitan Housing Development Corp . (1977) must be narrowly tailored to further a compelling governmental interest . By perpetuating stereotypical notions about members of the same racial group - that they think alike, share the same political interests, and prefer the same candidates - a racial gerrymander may exacerbate the very patterns of racial bloc voting that majority-minority districting is sometimes said to counteract. It also sends to elected representatives the message that their primary obligation is to represent only that group's members, rather than their constituency as a whole. Since the holding here makes it unnecessary to decide whether or how a reapportionment plan that, on its face, can be explained in nonracial terms successfully could be challenged, the Court expresses no view on whether the intentional creation of majority-minority districts, without more, always gives rise to an equal protection claim.” “Nor is there any support for the argument that racial gerrymandering poses no constitutional difficulties when the lines drawn favor the minority, since equal protection analysis is not dependent on the race of those burdened or benefited by a particular classification.” The Court, however, remanded the case to the district court on the grounds that the state prove a compelling interest in its redistricting plan. In a subsequent case, Shaw v. Hunt (1995), the Court found that North Carolina had not produced a compelling state interest to justify the use of racially gerrymandered districts.

North Carolina Congressional Districts in Shaw v. Reno (1993)

Civil Rights: Fourteenth Amendment – Equal Protection – Affirmative Action Regents of UCLA v. Bakke 438 U.S. 265 (1978) Facts: Allan Bakke applied twice to UCLA Medical School and was rejected. He learned that UCLA reserved sixteen seats to minorities and upon investigation discovered that his qualifications, including his GPA and MCAT scores, exceeded those of all the minority students. Question: Does UCLA’s affirmative action program violate the Equal Protection Clause of the Fourteenth Amendment and the 1964 Civil Rights Act? Findings: Yes. Four of the justices argued that any affirmative action involving the use of racial quotas violated the 1964 Civil Rights Act. Justice Powell’s opinion contended that the affirmative action program violated the Equal Protection Clause; however, he also concurred with the other four justices who argued that such quotas were permissible. Justice Powell stated that race could be one of several criteria. Thus, the Court allowed for the admission of Bakke while upholding affirmative action in terms of race if it is one of several criteria involved in admissions decisions. The Bakke decision was upheld in the 2003 University of Michigan cases Grutter v. Bollinger and Gratz v. Bollinger. See also Parents Involved in Community Schools v. Seattle School District I (2007). Bakke receiving his MD.

Civil Rights:14 th Amendment – Equal Protection – Affirmative Action Adarand Constructors, Inc. v. Pena 515 U.S. 200 (1995) Facts: Adarand, a subcontractor, installed guardrails along roads. Adarand lost a bid for a federal highway project in Colorado to a minority owned company, Gonzalez Construction. Main contractors, under Federal law, were given financial incentives to hire minority owned subcontractors. Adarand filed suit in federal district court arguing that the minority subcontractor incentive clause violated his Fifth Amendment right of Equal Protection. Question: Is the reliance on the assumption of disadvantage solely on the basis of race, resulting in favored treatment of minority subcontractors, a violation of the Equal Protection right understood to exist within the Fifth Amendment? Finding: Yes. The Court found that all racially based classifications are subject to Strict Scrutiny. See Carolene Products (1937) and Korematsu (1944). Under Strict Scrutiny, racially based laws or classifications must be narrowly tailored and support a compelling state interest. A report written in 2005 by the U.S. Commission on Civil Rights found that many federal agencies fail to consider racially-neutral alternatives in awarding contracts. The Commission’s report is available: http://www.usccr.gov/pubs/080505_fedprocadarand.pdf

Civil Rights: Fourteenth Amendment – Equal Protection – Womens’ Rights Rostker v. Goldberg 453 U.S. 57 (1981) Facts: In 1980, President Carter reactivated the Military Selective Service Act (MSSA) following the Soviet invasion of Afghanistan. President Carter asked Congress to amend the MSSA to allow for registration of females. However, Congress allocated funds only for males and refused to amend the MSSA. Robert Goldberg and several other men filed suit against Goldberg, the Administrator of the Selective Service. Question: Does the exclusion of females in the MSSA violate the implied Due Process right of the Fifth Amendment? Finding: No. The majority found that the exclusion of women from the MSSA was not a result of outdated ideals, but, instead, stemmed from the military’s restriction of women from active combat roles. The majority also noted that such matters should be deferred to Congress given the testimony of military officers, before congressional committees, that women would not be well suited for active combat roles. See also Frontiero v. Richardson (1977), where the Court developed an “intermediate” level of scrutiny in cases concerning the equal protection right of women. See also U.S. v. Virginia Military Institute (1996) concerning the role of traditions and customs, etc.

Civil Rights: Fourteenth Amendment – Equal Protection – Womens’ Rights U.S. v. Virginia Military Institute 116 S. Ct. 2264 (1996) Facts: Virginia Military Institute (VMI), a public university of the State of Virginia, did not admit women in light of its longstanding tradition as an all-male university. The U.S. sued VMI and the State of Virginia on the grounds of violating the Equal Protection right of the Fourteenth Amendment. The Fourth Circuit Appellate Court reversed the District Court’s ruling that VMI could discriminate against female applicants. In response, VMI proposed to initiate a Virginia Women’s Institute for Leadership at a neighboring women-only public university – Mary Baldwin. The Fourth Circuit then agreed with VMI that the two universities, despite the difference in prestige, would offer “substantially comparable educational benefits.” The U.S. then appealed to the U.S. Supreme Court. Question: Does Virginia’s exclusion of women from VMI violate the Equal Protection Clause of the Fourteenth Amendment? Finding: Yes. Justice Ginsburg, stated, “Parties who seek to defend gender-based government action must demonstrate an exceedingly persuasive justification for that action.” The heightened review standard in this case required that state universities wishing to discriminate against female applicants must show a compelling interest beyond generalizations such as tradition. Justice Scalia, the lone dissenter, argued that the Court had moved beyond the “Intermediate Scrutiny” standard, used in Frontiero v. Richardson (1977), in favor of Strict Scrutiny.

Civil Liberties : Fourteenth Amendment Equal Protection – Homosexuality Romer v. Evans 517 U.S. 620 (1996) Facts: Colorado voters adopted Amendment II to their State Constitution precluding any judicial, legislative, or executive action designed to protect persons from discrimination based on their "homosexual, lesbian, or bisexual orientation, conduct, practices or relationships." Following a legal challenge by homosexual and other aggrieved parties, the state trial court entered a permanent injunction enjoining Amendment II enforcement. The Colorado Supreme Court affirmed the trial court’s decision on appeal. Question: Does Amendment II of Colorado's State Constitution, forbidding the extension of official protections to those who suffer discrimination due to their sexual orientation, violate the Fourteenth Amendment's Equal Protection Clause? Findings: Yes. The Court held that Amendment II of the Colorado State Constitution violated the Equal Protection Clause. Amendment II singled out homosexual and bisexual persons, imposing on them a broad disability by denying them the right to seek and receive specific legal protection from discrimination. In his opinion for the Court, Justice Anthony Kennedy noted that often a law will be sustained under the Equal Protection Clause, even if it seems to disadvantage a specific group, so long as it can be shown to "advance a legitimate government interest." Amendment II, by depriving persons of equal protection under the law due to their sexual orientation failed to advance such a legitimate interest. Justice Kennedy concluded: "If the constitutional conception of 'equal protection of the laws' means anything, it must at the very least mean that a bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest."

Civil Rights: Fourteenth Amendment – Equal Protection – Aliens Plyer v. Doe 457 U.S. 202 (1982) Facts: The state of Texas denied funding to school districts for education of children of illegal aliens. Question: Does the denial of state funds to school districts for education of the children of illegal aliens violate the Equal Protection Clause of the Fourteenth Amendment? Findings: The Court found that although illegal aliens and their non-jus solis children are not citizens, they are people. Thus, they are entitled to Fourteenth Amendment protection. The Court applied Strict Scrutiny. Texas did not prove that it had a compelling interest in passing the law.

Civil Rights: Fourteenth Amendment – Equal Protection – Language Arizonans for Official English v. Arizona 520 U.S. 43 (1997) Facts: Arizona passed a law in 1988 which makes English its official language allowing individuals and businesses to sue for enforcement. Maria Yniguez used both English and Spanish at work as a necessity. She feared that she might lose her job as a state employee if she spoke Spanish. The District Court dismissed her suit, but held the state law to be unconstitutional. The Appeals Court upheld her suit and well as the District Court’s ruling on the law. Ultimately, Ms. Yniguez resigned and was not fired. Question: Does the case have standing considering that Ms. Yniguez left her job? Findings: No, the Court ruled the issue was moot because Ms. Yniguez resigned. The Court did not rule on the constitutionality of the Arizona law. The Arizona Supreme Court found the law unconstitutional in 1998. However, Arizona’s Official English Amendment was reinstated by voters in 2006.

PROPOSITION 103 OFFICIAL TITLE HOUSE CONCURRENT RESOLUTION 2036 PROPOSING AN AMENDMENT TO THE CONSTITUTION OF ARIZONA; REPEALING ARTICLE XXVIII, CONSTITUTION OF ARIZONA; AMENDING THE CONSTITUTION OF ARIZONA BY ADDING A NEW ARTICLE XXVIII; RELATING TO ENGLISH AS THE OFFICIAL LANGUAGE. TEXT OF PROPOSED AMENDMENT Whereas, the United States is comprised of individuals from diverse ethnic, cultural and linguistic backgrounds, and continues to benefit from this rich diversity; and Whereas, throughout the history of the United States, the common thread binding individuals of differing backgrounds has been the English language, which has permitted diverse individuals to discuss, debate and come to agreement on contentious issues; and Whereas, in recent years, the role of the English language as a common language has been threatened by governmental actions that either ignore or harm the role of English or that promote the use of languages other than English in official governmental actions, and these governmental actions promote division, confusion, error and inappropriate use of resources; and Whereas, among the powers reserved to the States respectively is the power to establish the English language as the official language of the respective States, and otherwise to promote the English language within the respective States, subject to the prohibitions enumerated in the Constitution of the United States and federal statutes. See also Proposition 203, passed by 67 percent of voters in Arizona in 2000, ending bilingual education, in favor of English immersion, in Arizona. Civil Rights: Fourteenth Amendment – Equal Protection – Language

Module 3A: Political Behavior and Elections Objectives: What are some of the different forms of political participation? What is the function of voting? What explains levels of political participation? Why has political participation in the U.S. declined over time? What roles do political institutions play in promoting political participation? What roles does civil society play in promoting political participation? Have attempts to increase political participation succeeded and what are the implications for democracy? What are interest groups and what is their contrast with political parties? What are the forms of elections in the U.S. and how does the electoral college function?

What Happened to Political Participation in the United States? Participation in American national elections has decline steadily since the 1960s. Turnout in Presidential elections fell nearly 13 percentage points between 1960 and 1988. What does it mean that fewer Americans exercise their right to vote or to take part in electoral campaigns? Does it indicate an electorate basically satisfied with the way things are going or does it betoken a massive withdrawal of popular support and legitimacy? What does it mean that more Americans are taking advantage of their right to organize and lobby government? Does it signify a cynical and manipulative abuse of the political process by interest groups? The reigning theories of participation in American politics do not have much to say about politics. Instead, they trace participation to individual characteristics such as education and income. They assume that attitudes determine behavior.

Political Behavior: The Paradoxes of Voting – Rationality? If people are rational and they receive only collective benefits, they will not vote. The result of the election will be the same whether they participate or not. In any election, thousands or millions will cast votes; the chance that a single vote will determine the election is miniscule. In 1960, a very close presidential election, John F. Kennedy’s victory over Richard M. Nixon hinged on 115,000 votes, about 0.2 percent of the total, but still a large number. The second problem is “rational ignorance.” If political involvement is irrational, for the same reason, so is political learning. First, information about politics must be gathered with costs. Candidates for office are unfamiliar and inaccessible. Third, the value of information, once obtained, is very small. Even if voters had lots of information about the issues, what good would it do them? It makes no sense to act on it; the outcome will be the same regardless. Thus, the participation cannot be answered solely through the context of individuals; it must include family, friends, neighbors, politicians, parties, and interest groups. Social networks play a key role in overcoming the paradoxes of participation and rational ignorance.

Political Behavior: The Paradoxes of Voting – Rationality? Anthony Down’s work An Economic Theory of Democracy (1957) undermined previous work in political science emphasizing virtue by providing a predictive model of self interest on the part of both public officials and voters. The goal of An Economic Theory of Democracy was threefold: General equilibrium theory, prediction of political behavior and the rational basis of political order Rationality was based on three criteria: behavior is goal directed, self interested, rationality related to government selection Down’s Eight Rules of Democratic Structure: All adults can vote Each gets one vote Two or more political parties Periodic elections Single winner Majority winner Cessation of vengeance Hypothesis was that political parties formed policies only to win votes, and that voters vote for who provides them the greatest benefits ! Government decision making was based on marginal expenditure: Programs would be increased until the vote gain from each dollar spent equaled the loss of votes resulting from increased taxes.

Political Behavior: The Paradoxes of Voting – Rationality? The “Arrow Paradox” shows the difficulty of producing rational social choices. If there are three voters with the preferences shown below, where the first option is preferred to the second, then it is clear that (1) a simple majority vote would produce no result at all (2) voting by pairs would ‘cyclical majorities’, where the outcome would depend on the order in which the votes were taken. If the first group voted between A or B, that is, A would win; if it voted between B or C, then B would win; and if the group voted between C or A, then C would win. This means there exists a political situation for which no rational solution exists. Voter 1 Voter 2 Voter 3 A B C B C A C A B

Political Behavior: The Paradoxes of Voting – Rationality? The solution Downs suggests was uncertainty or ignorance; without this democracy would probably be impossible! Uncertainty involves three levels: current information, knowledge of context, and reasoning. Because information is hard to acquire, people delegate information (i.e. intelligence) to specialists. Leadership is then defined as the special task of influencing people who need to be relieved of uncertainty. The leaders then are able to diffuse ideology. Voter’s preferences are distributed along a bell shaped curve with most preferences falling in the center. Therefore, politicians rationally direct their appeals to the center and that the best way to do this is couch their rhetoric in ambiguous terms. But when politicians do this, the voters cannot tell what their actual utilities may be, and so cannot vote according to their self interest. This leads to the disappointing conclusion that when politicians are acting rationally, they make it impossible for voters to act rationally.

Political Behavior: Political Mobilization Mobilization is the process by which candidates, parties, activists, and groups induce others to participate. Direct Mobilization – Door-to-door canvassing, direct mail, televised appeals, and letter drives are some examples. Provides opportunities for political action not otherwise available. 2. Political leaders subsidize political information and the costs of participation. Indirect Mobilization – Occurs when leaders contact citizens through mutual associates, family, friends, neighbors, or colleagues. Membership in social networks makes people responsive to mobilization. 2. Social networks reduce costs to politicians and candidates.

Political Behavior: Civic Republicanism Revisited Robert Putnam in Making Democracy Work (1993) and Bowling Alone (1998) argues that civil society is a necessary component of democracy. Civil society occupies the middle ground between individuals-families and the state; thus, while it influences democracy, it is outside of the state. Civil society is composed of myriad organizations that may be business, religious, hobby, issue, community, etc. related. Participation in civil society builds “social capital”, which encompasses values such as interpersonal trust, trust in government, and religiosity. Societies may accumulate social capital, which in turn can be used in times of emergency or disarray. In Putnam’s thirty year study of Southern Italian towns, he finds that the lack of efficacious government is due to a reliance on amoral familialism, which has in turn produced historically low levels of interpersonal trust and trust in government. This is held in contrast to Northern Italy, where civil society is stronger. In Bowling Alone , Putnam provides a similar argument to explain the decline in political participation in the United States. While the United States may have higher levels of trust, strong individualism combined with mobility has weakened civil society resulting in low levels of political participation.

Political Behavior: Civic Republicanism Revisited Assignment III: Questions Summarize the main idea of this article in a brief essay of at least three paragraphs, about a half a page. What are the main factors or categories that comprise social capital? What is the most common associational membership noted? Briefly elaborate on the trends that Putnam notes here. What are some other forms of associational membership noted? Briefly describe the nature of these associations. Putnam notes some “countertrends.” Briefly note and describe the nature of these countertrends. Putnam notes some possible reasons for the decline in social capital. Briefly note and elaborate on Putnam’s reasons. What are some possible solutions given by Putnam? Answer the survey questions and save the results for class discussion. 9. Provide a brief explanation as to the differences in social capital among the states. 10. How does Putnam’s theory and findings hold up in light of competing theories of democracy?

Political Behavior and Elections: Third Parties? Third parties have played an influential role in American politics. Although it is extremely difficult for third parties to win elections, their emphasis on social and economic interests has been substantial. Third party causes have traditionally been absorbed by the two dominant parties. Third party electoral support has usually been regionally limited. Americans usually assume that only the candidates nominated by one of the two major parties have any chance of winning an election. Third parties are hampered by single member plurality districts. This can be contrasted with multiple member districts with proportional representation. American election law depresses the number of parties likely to survive over long periods of time.

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