2Chapter 13: Supreme Court Cases Section 1: The First Amendment: Your Freedom of ExpressionSection 2: The Fourth Amendment: Your Right to Be SecureSection 3: Due Process and the Fourteenth AmendmentSection 4: Federalism and the Supreme Court
3Section 1 at a Glance The First Amendment: Your Freedom of Expression Students’ Right of Expression Do students who are not being disruptive lose their constitutional right to freedom of speech or expression when they enter the schoolhouse door?Learn about the fundamental freedoms guaranteed by the First Amendment to the Constitution.The Play’s the Thing Use your knowledge to prepare and argue a case in federal district court alleging a violation of freedom of speech. Your arguments must be guided by both the First Amendment and Supreme Court decisions on this subject.
4The First Amendment: Your Freedom of Expression Reading FocusYour freedom of expression—the right to practice your religious beliefs; to hold, express, and publish ideas and opinions; to gather with others; and to ask the government to correct its mistakes—is the cornerstone of our democracy. Through its power to interpret the Constitution, the Supreme Court can expand—or limit—your rights.
5Students’ Right of Expression In the mid-1960s public opinion about the Vietnam War was divided. By 1963, protests and demonstrations against the war began to spread, especially on college campuses. Within a couple of years, some high school and middle school students also began to protest the Vietnam War.The Black Armband Case1965: John Tinker and others protested Vietnam War by wearing black armbands at public schoolSchool board adopted policy banning wearing of armbandsSeveral violated policy, wore armbands, and were suspendedParents sued school district claiming students’ First Amendment right to free expression had been violatedU.S. district court ruled in favor of school; appeals court upheldCase appealed directly to U.S. Supreme Court–
6Students’ Right of Expression (cont’d.) The Supreme Court DecisionTinkers and others argued school’s ban on armbands violated right to free speech under First, Fourteenth Amendments—armbands symbolic speechSchool district argued ban intended to prevent classroom disruption, not suppress expression; argued reasonable use of power to preserve order1969: Tinker v. Des Moines School District reversed lower court’s rulingConstitutional rights not shed “at schoolhouse gate”Court agreed school authorities have right to maintain order, but protesters did not interrupt activities or seek to “intrude in school affairs”Court said schools can regulate student speech when speech would be disruptive and interfere with rights of other studentsTinker test: if expression does not substantially interfere with school operation, regulating that speech violates the Constitution’s protection of free expression
7Students’ Right of Expression (cont’d.) After TinkerTinker case remains leading case dealing with free-expression rights of public school students1980sTimes and court membership changedCourt gradually modified and expanded concept of school disruptionExamples1986: Bethel School District v. Fraser upheld suspension of student for giving speech containing vulgar sexual references1988: In Hazelwood School District v. Kuhlmeier justices upheld right of school officials to censor school newspaper if school believes content inconsistent with legitimate educational purposeSupreme Court has limited student expression on and off campus in recent years
9WHAT DO YOU THINK?1. Are protests like Tinker’s disruptive of school activities? Explain your point of view.2. Should school authorities have the right to censor student speeches or newspapers? Why or why not?3. Is the Tinker test an adequate way to handle issues related to students’ freedom of expression? Why or why not?
11The Establishment Clause Freedom of ReligionThe First Amendment guarantees your right to freedom of expression, the right of citizens to hold, explore, exchange, express, and debate ideas. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” These two guarantees are known as the establishment clause and the free exercise clause.Jefferson called for “wall of separation” between church, stateSupreme Court has tried to maintain such a wallDisagreement exists over how high wall should be, or if it should existThe Establishment ClauseSome of the greatest controversyCourt has banned public enforced school prayer, not private, voluntary school prayerPrivate religious groups allowedEmployees may not take partSchool Prayer–
13Freedom of Religion Religion and Instruction Teaching about religion and the Bible allowableInstruction must be done in nonreligious mannerCannot include teaching of religious beliefs1968: Epperson v. ArkansasOverturned law that prohibited teaching of evolution1987: Edwards v. AguillardVoided Louisiana law requiring religious view known as creation science to be taught alongside evolution
14Freedom of Religion (cont’d.) The Free Exercise ClauseFirst Amendment seems to make freedom of religious belief an absolute rightCourt has drawn distinction between right to believe and right to express beliefs through actionsDifference noted in first case heard involving free exercise clause1879: In Reynolds v. United States Court upheld conviction of George Reynolds for practice of polygamy, having more than one wifeReynolds belonged to Mormon Church, which allowed polygamyFederal law prohibited practice of polygamyCourt ruled free exercise clause did not protect religious practices “subversive of good order,” even if they reflected religious beliefsCourt developed principle into “compelling interest test”Requires government to have compelling reason for banning religious practice as necessary to protect society
15“Compelling Interest Test” West Virginia State Board of Education v. Barnette, 1943Court upheld students’ right to refuse to salute flag, recite Pledge if it violated their religious beliefsMaking patriotic ceremonies voluntary did no harm to societySherbert v. Verner, 1963Reversed South Carolina’s denial of unemployment benefits to woman fired for refusing to work on Saturdays, her day of worshipSociety’s gain did not outweigh person’s freedom to follow beliefsGoldman v. Weinberger, 1986Upheld Air Force’s ban on wearing nonmilitary apparelJewish man could not wear yarmulke while on dutyBased on military need to foster unity and group spiritEmployment Division v. Smith, 1990Upheld right to deny unemployment benefits for two Native Americans fired for ingesting peyoteStates may enforce laws that incidentally interfere with religious practices
16ContrastingHow did the Court’s position on religious expression in Sherbert v. Verner differ from its position in the Smith case?Answer(s): In Sherbert v. Verner the Court extended freedom of religious expression rights; in the Smith case the Court limited religious rights.
17Protected and Unprotected Speech Freedom of Speech“Congress shall make no law…abridging freedom of speech, or of the press…” Is speech only spoken words, or does it include other forms of expression? Are there limits to this freedom?Speech that has little or no social value is generally not protected1942: Chaplinsky v. New Hampshire, some classes of expression not protected—— Fighting words— Defamatory speech— Lewd and profane speechProtected and Unprotected SpeechCourt has ruled schools can regulate time, place, content of student expressionPolitical speech—fewest limitsVulgar, obscene speech—not allowed in schoolSpeech codes—many schools have adopted limits on expressionCyberspeech—generally same protection as printed materialStudent Speech
19What limits are placed on student speech? SummarizingWhat limits are placed on student speech?Answer(s): Students are prohibited from speech that disrupts the school’s learning environment and that violates the boundaries of socially accepted behavior.
20Freedom of Petition and Assembly First Amendment recognizes, protects right to petition government for redress of grievances—to remove the cause of a complaint and make things rightFreedom of petition: right to ask government to act to correct injustice without fear of punishment for making requestRights of assembly and petition go hand in handRight of assembly—you have right to join, form groups, gather for any peaceful, lawful purposeMust be peacefulMay not gather on private property without owner’s consentGovernment may reasonably regulate time, place, behavior1927: Whitney v. California upheld conviction of woman for membership in Communist Labor PartySuch limits allow authorities to arrest suspected terrorists, members of armed groups that pose threat to society–
22Drawing ConclusionsHow do the freedoms of petition and assembly support a republican form of government?Answer(s): Those freedoms increase citizen participation in government.
23Freedom of Petition and Assembly (cont’d.) Student AssemblyLimits that apply to public also apply to students in schoolCourt has been more restrictive of student rightsSchools have right to control time, place, manner of gatherings, set restrictions on school clubs, have right to deny some clubs permission to formProhibits schools from discriminating against clubs because of religious or philosophical viewpointStudents may distribute religious and political literature, but school officials may regulate activityEqual Access Act of 1984Schools do not have to allow organizations that preach hate or violence, engage in illegal activityCannot restrict students from forming clubs just because clubs might be controversialIllegal Activity–
24Making Generalizations What kinds of school clubs are not protected by the right of assembly?Answer(s): clubs that preach hate or violence, or that engage in illegal activity
25Simulation The Play’s the Thing Will students from Home City High School be allowed to stage their play?Issues of student free speech can take many forms, including plays performed by student drama groups. Using what you have learned in Section 1, complete the simulation about a fictional lawsuit seeking permission to perform a student play.
26Simulation (cont’d.) Roles Federal judge Jurors Plaintiffs’ attorneys Defendants’ attorneysAttorney for Civil Liberties Association (CLA)Attorney for Center for Free Student Press (CFSP)Attorney for Association of United Churches (AUC)Attorney for Association of School Administrators (ASA)Drama club membersSchool principalSchool newspaper editorOther witnesses
27Simulation (cont’d.) The Situation Drama club wants to stage play on life, teachings, impact of historical founder of Eastern religionPermission to present play to all-school assembly deniedOffer to present play during lunch with voluntary attendance also deniedStudent started petition to demand presentation of playPetition seized, student responsible for petition suspendedSchool newspaper prepared story on controversySchool officials refused to allow story to be publishedStudents filed lawsuit in federal court
28Simulation (cont’d.) The Trial Attorneys for plaintiffs, defendants will present casePlaintiff case presented first, followed by defenseEach side calls witnesses, including expert testimonyOrganizations present arguments at conclusion of appropriate side’s caseJury renders verdict for plaintiffs or defendants after each side’s case heard
29Simulation (cont’d.) Debriefing After the jury has reached its verdict, discuss the jury’s findings as a class. Assess whether the jury, the attorneys, and expert witnesses for each side correctly applied the First Amendment and case law to the facts in this trial. Then write a one-page summary explaining whether you agree with the verdict and why or why not.
30Section 2 at a Glance The Fourth Amendment: Your Right To Be Secure The Right to Privacy Learn about a 2005 case in which the police used a “sniffer” dog to search for illegal drugs during a routine traffic stop.Learn about the privacy protections the Fourth Amendment provides and the circumstances under which the government can infringe upon your right of privacy.Have You Been Seized? Use your knowledge to argue a case involving an alleged search and seizure violation.
31The Fourth Amendment: Your Right To Be Secure Reading FocusThe Fourth Amendment guarantees your right to be secure against unreasonable searches and seizures—in other words, it guarantees that you have rights to some sorts of privacy. As with First Amendment rights, Fourth Amendment rights are not absolute and are subject to judicial interpretation. In this cyber age, protection of these rights is perhaps more important than ever.
33The Right to Privacy Caballes Pulled Over A Canine Alert Should authorities be able to search a car or home with “sniffer” dogs, or an electronic sensor? Neither method requires authorities to enter the car or building, so are these really searches? When, if ever, should they be legal?1998: Roy Caballes clocked by state trooper driving 71 mph in a 65 mph zoneCaballes pulled over for speedingWarrant check revealed no outstanding warrants, but that Caballes had been arrested twice for selling drugsSecond trooper with drug-sniffing dog arrived at sceneCaballes Pulled OverDog walked around Caballes’s car, barked at trunkTroopers opened trunk, found large quantity of marijuanaCaballes arrested for drug traffickingLawyer claimed drugs found as product of illegal searchCaballes convicted, sentenced to 12 years in prisonA Canine Alert
34The Right to Privacy (cont’d.) The Court Hears Illinois v. Caballes2003, Illinois Supreme Court reversed Caballes’s conviction, said drug-sniffing dog at routine traffic stop violated Fourth Amendment rightsState appealed ruling to Supreme Court2004, Supreme Court hears Illinois v. CaballesGovernment argued dog sniff not search, does not violate privacyJustice Souter agreed not full-blown search but asked if it were constitutional, what would prevent police from walking dogs around every private home just to see if they get a “sniff of something”Justice Scalia noted Court had ruled Fourth Amendment rights violated when police used thermal-imaging devices to see if people were growing marijuana in homesCaballes’s attorney argued sniff was search, like scanner revealed something hidden from view; police had no reasonable suspicion to search car
36The Caballes Decision2005, Illinois v. Caballes: 6–2 decision—Court reversed Illinois Supreme Court, upheld Caballes’s convictionMajority opinion: person has no legitimate privacy interest in possessing drugs or contrabandGovernment action indicating possession of contraband does not violate 4th Amendment privacy interestsCourt agreed with state’s argument that dog sniff not a searchIf traffic stop lawful, police had right to use sniffer dogDissenting opinions: dogs can be wrong as result of poor training, errors by handler, dog’s limited abilityDog’s bark not probable causeJustice Ginsburg: “every traffic stop could become an occasion to call in the dogs”Worried Court decision could clear way for police with dogs to be stationed at long traffic lights, circling cars waiting for green lights
37WHAT DO YOU THINK?1. Is a trained dog’s sniff of someone or something a search of that person or thing? Explain why or why not.2. Do you agree with the majority of the Court in the Caballes case or with the dissenting opinions? Explain why.3. Would your opinion in the Caballes case be different if it had involved a bomb-sniffing dog instead? Explain why or why not.
38Understanding Search and Seizure The Fourth Amendment states that “the right of the people to be secure in their persons, homes, papers and effects, against unreasonable search and seizure, shall not be violated.” This guarantee applies only to searches and seizures made by the government; it does not protect against unreasonable searches and seizures by private organizations or citizens. It did not apply to state governments until 1949, and the Supreme Court did not apply the exclusionary rule to state courts until 1961.Definition of search—any action by government to find evidence of criminal activity—very broadIncludes searching property, listening to phone conversations, stopping suspicious-looking persons and frisking for weaponsSearchesSeizure occurs when authorities keep something—an object, personPolice might seize item from home as evidence in a murderMight take drugs or weapon from person stopped and friskedSeizures
39Probable Cause and Warrants To obtain a warrant—a court order to search for something or seize someone—there must be probable cause to believe the search will produce evidence of a crime, or that the person seized committed a crime.4th Amendment bans unreasonable search and seizureWhat is reasonable?1967: Katz v. United States, searchers must respect person’s right to privacySearch warrant needed to look inside somethingMust state what is being searched, what authorities are looking forUnreasonable SearchesSome instances where warrant not requiredPlain view doctrine: if object is in plain view, law assumes owner does not consider it privateExample—if police have warrant to search home for illegal drugs and drug paraphernalia is in plain view, it can be seized even though items not listed on warrantWarrantless Searches
42How are search and seizure related? SummarizingHow are search and seizure related?Answer(s): Authorities conduct searches for evidence of illegal activity, and if they find such evidence, they seize it for evidence.
43The Fourth Amendment and Privacy Katz v. United States: Fourth Amendment protects people, not just placesWherever a person is, his/her right to privacy protected if he/she has exhibited reasonable expectation of privacyLevel of privacy depends in part on where person isNot as much privacy expected in coffee shop as in homeNo matter where person is, he/she has no expectation of privacy if in possession of illegal drugsCourt has said search or seizure lawful when it begins can violate Fourth Amendment if way search carried out unreasonably infringes upon interests protected by ConstitutionUnited States v. Jacobson, 1984The Court has used all of these principles to decide when and how far protections under the Fourth Amendment apply.
44Searches of HomesCourt applies highest expectation of privacy to people’s homesWarrant required in most cases to search homes1998, Minnesota v. Carter: no reasonable expectation of privacy when illegal drugs involved1988, California v. Greenwood: garbage cans may be searched without warrant; no expectation of privacy for items thrown away1986, California v. Ciraolo: arrest allowed after marijuana spotted from police plane2001, Kyllo v. United States: Court drew line at use of devices to look through walls of homes from outsideOverturned arrest of man because thermal scan of home revealed marijuana growing insideThermal scan reveals information normally available only with actual intrusion into house, requiring warrantAuthorities did not have warrant, therefore seizure of evidence, arrest unconstitutional
45Personal Privacy Stop and Frisk Fourth Amendment provides people will be secure in persons from unreasonable search, seizureCourt has interpreted guarantee in variety of ways, applied differently in number of circumstancesStop and FriskGenerally police do not have right to stop people randomly and search them1968, Terry v. Ohio: police can stop people who seem to be acting suspiciously, pat down for weaponsNeither warrant nor probable cause needed for what now is called Terry stopPublic safety outweighs individual’s privacy right
47Intrusive SearchesDegree to which authorities may go in searching person’s body depends on situationThree questions considered in deciding if search reasonableWhat is legal status of person being searchedHow invasive is searchDoes search serve safety, security need for society—this standard called special needs testExamplesStrip searches of prisoners permissibleFingerprinting arrested persons allowableFingerprinting persons not under arrest requires probable causeBlood or DNA testing more invasive, requires search warrantBlood testing of arrested person requires only probable cause
48Drug Testing Drug tests require blood, urine samples Considered intrusive searchesIn most cases require warrant, at least probable causeCourt has removed requirement for certain groups of peopleGovernment can require workers in jobs where public safety important to be tested without probable cause or suspicion1995, Vernonia School District v. Acton: schools may require random drug testing of athletes even if no one suspected of drug use“Deterring drug use by our nation’s school-children is at least as important as…deterring drug use by engineers and trainmen”
49Students’ Fourth Amendment Rights Court has generally limited students’ Fourth Amendment rightsReasoning same as limiting students’ First Amendment rightsStudents’ rights may be restricted in order to preserve proper learning environment in schools1985, New Jersey v. T.L.O.Probable cause not needed for school officials to search students if circumstances make search reasonableT.L.O.: teacher found girl smoking in restroomGirl denied smoking to vice principalSearch of purse revealed cigarettes, marijuanaCourt: search not unreasonable under circumstancesAfter T.L.O., most student search cases decided at state levelAny search by police officers still requires warrant
50Private Communication 1967, Katz v. United States: landmark Supreme Court decision on wiretapping, other forms of electronic surveillanceSince Katz, use of computers, cell phones, personal digital assistants, other wireless devices has created new kinds of searches, applications of Fourth AmendmentCases involving cyber-surveillance have yet to reach Supreme CourtUSA PATRIOT Act greatly relaxed privacy protections, controls on searches, seizuresGovernment allowed to search variety of information—phone company records, Internet service providers, libraries, bookstoresThe 4th Amendment Since 9/11National Security Letter—issued by FBI and others; authorizes search without warrantPATRIOT Act also contains gag order—recipient of NSL prohibited from disclosing that letter was ever issuedNSL
52National Security and the Courts Wireless “Searches”Many of today’s communications devices use wireless communicationAnyone with scanner tuned to proper frequencies can intercept signalsSuch interception illegal, except for law enforcement agenciesWarrant must be obtained to monitor wireless communicationsPATRIOT Act—some standards for obtaining warrants relaxed, eliminatedNational Security and the CourtsSeveral 4th Amendment challenges to government surveillance programs now before federal courts2006, United States v. Arnold: case of search of laptop contents at airport2006, class-action suit accusing AT&T of turning over phone records of millions of Americans to the National Security AgencyGovernment argues that actions necessary to protect national securitySupreme Court likely to be asked to decide these issues, other similar cases
53Why are National Security Letters controversial? SummarizingWhy are National Security Letters controversial?Answer(s): possible answer—Probable cause is not needed to obtain them and they come with a gag order.
54Simulation Have You Been Seized? How will the Supreme Court rule in State v. Martin?Issues relating to Fourth Amendment searches and seizures have been brought before courts for many years, and still not every question has been resolved. In this simulation you will argue one such Fourth Amendment issue before the Supreme Court.
55Simulation (cont’d.) Roles Chief justice of the United States Eight associate justicesPlaintiff’s attorneysDefendant’s attorneysAttorneys from the National Association of Law Enforcement Members (NALEM)Attorneys from the Foundation for Fourth Amendment Freedoms (FFAF)
56Simulation (cont’d.) The Situation Police discover small amount of illegal drugs on 18-year-old in pat-down search during traffic stop18-year-old convicted in state district court for drug possessionConviction appealed on grounds that Fourth Amendment rights violated, search illegal because he was passenger, no probable cause to search himState supreme court agreed, overturned convictionState has appealed ruling to U.S. Supreme Court
57Simulation (cont’d.) The Hearing Attorneys for both plaintiff, defendant will present oral arguments to CourtPlaintiff’s case presented first, followed by defendant’sJustices may interrupt each argument to ask questionsAfter each side has made argument, Court will rule, either upholding or reversing state supreme court’s ruling overturning conviction
58Simulation (cont’d.) Debriefing While the Supreme Court is deliberating its decision, write a one-page decision of your own, revealing how you would decide the case if you were on the Court. After the Court’s decision is read, discuss whether you agree or disagree with the Court’s opinion or opinions.
59Section 3 at a Glance Due Process and the Fourteenth Amendment Due Process and Public Schools Learn about how the Fourteenth Amendment right to due process applies to public schools.Learn about how the Supreme Court has used the due process clause of the Fourteenth Amendment to expand and protect people’s rights.Terrorists and Due Process Use your knowledge to argue a case involving due process issues before the Supreme Court.
61Due Process and the Fourteenth Amendment Reading FocusThe Fourth Amendment requires that states provide due process and equal protection under the law. These requirements have made this amendment one of the most important parts of the Constitution.
62Due Process and Public Schools What due process rights, if any, do students have if they are facing suspension from public school? The Supreme Court addressed the issue in Goss v. Lopez in 1975.The School Suspension Case1971: Columbus, Ohio, school officials suspend number of students for up to 10 days for student misconductDwight Lopez asserted he was innocent bystanderClaimed due process rights denied because he was suspended without hearingDistrict court ruled suspensions unconstitutional; Lopez, others denied due processCourt said school should have given students notice of suspension, held hearingSchool system appealed to Supreme Court–
63Due Process and Public Schools (cont’d.) The Court Hears Goss v. LopezSchool argued because there was no constitutional right in Ohio to public education, no requirement school provide due processAttorneys for Lopez pointed to Ohio law requiring state to provide free education for all studentsArgued suspending without due process unconstitutionally deprived students of this rightThe Supreme Court’s Decision1975: in 5–4 decision Court said because Ohio offered public education, students could not be deprived of that right without due processJustice White: Ohio had made education a property rightEither before suspension, or soon thereafter, students must be given hearing, allowed to explain eventsCourts have consistently interpreted Goss to mean that students who are suspended for longer than 10 days must be granted more due process rights.
64WHAT DO YOU THINK?1. Do you agree that a public education is a property right? Why or why not?2. Should students suspended for fewer than 10 days for a rule violation have a right to a hearing? Why or why not?3. Should students who are expelled receive more due process than those who are suspended? Explain why or why not.
65Due Process and Equal Protection 14th Amendment: no state shall “deprive any person of life, liberty, or property without due process…nor deny any person…equal protection of the laws”Court has applied many Bill of Rights guarantees to actions of states through doctrine of incorporation, and has applied idea of “equal protection” against actions of federal governmentDue process—laws, process, and procedures of applying them must be fairEqual protection—each person in same, similar circumstances stands before law equallyProcedural due process—certain procedures must be followed in carrying out, enforcing lawSubstantive due process—if way laws carried out are fair, then laws themselves must be fairPeople have natural rights not listed in ConstitutionTo be fair a law cannot violate people’s natural rights
66SummarizingExplain how procedural due process and substantive due process ensure that a person will have a fair trial.Answer(s): possible answer—Procedural due process ensures that proper trial procedures will be followed, and substantive due process ensures that the interpretation of the laws during the trial will be fair.
70Substantive Due Process Constitution does not create or grant rightsProtects, guarantees “unalienable rights” referred to in DeclarationPurpose of 9th Amendment: recognize, protect rights not explicitly stated—unenumerated rightsCourt has used doctrine of substantive due process to decide what some of those rights are, including certain property rights, right to privacy, othersCourt first used doctrine of substantive due process to define, protect property rights, other economic rights1905, Lochner v. New York, one of most famous examples—also known as the Bakeshop CaseProtecting Property RightsBakery owner arrested in violation of Bakeshop Act; claimed deprived of property rights—to negotiate employment contract—without due processState argued it was empowered to protect well-being of citizensThe Bakeshop Case
72The Decision and the Dissent 5–4 decision, justices agreed with bakeshop ownersOverturned conviction, ruled Bakeshop Act unconstitutionalWhen considering if exercise of state’s police power to safeguard public health constitutional, Court must ask if regulation reasonable and necessary, or unreasonable, unnecessary, arbitraryCourt did not believe long hours in bakery unhealthyLaw unreasonable interference with rights of individuals to make contracts regarding laborStrong dissentsJustices Harland, Holmes argued Court’s majority should have respected legislature’s judgment instead of own point of view“A constitution is not intended to embody a particular economic theory...”
73Lochner’s EffectAfter Lochner, first criticisms of substantive due process heardCourt attacked for using doctrine to impose its views, values on nationAs Court continued to apply substantive due process to laws affecting property rights, criticism grew1938, United States v. Carolene Products Company: Court said it would apply only rational basis test to economic regulationsRational basis test meant for a law to be upheld, government would have to show only it had good reason—rational basis—for passing lawWhen Court called upon to review law, rational basis test the least strict standard it can applyThe practical result of the Court’s announcement was that it nearly stopped applying substantive due process to property rights. However, it said it would apply a stricter test to laws that affected personal rights.
75Protecting Personal Rights After Carolene, the Court did begin to use substantive due process to define basic personal rights, none of which are expressly listed in the Constitution.Right to Privacy1965, Griswold v. Connecticut: privacy right first recognized by Court1973, Roe v. Wade: expanded privacy rightDetermining the Right to Die1983: Nancy Beth Cruzan critically injured in auto accidentDoctors said she would never recover from “persistent vegetative state”1987: hospital refused parents’ request to remove feeding tube and allow Nancy to dieParents argued daughter would not want to live in such a condition
77Protecting Personal Rights The Cruzan DecisionTrial court ruled for parents; Missouri Supreme Court overruled, holding there was no clear, convincing evidence Nancy wished to die1990, Cruzan v. Director, Missouri State Department of Public Health: Court ruled right to refuse medical treatment a privacy right protected by 14th Amendment, but also upheld ruling of Missouri Supreme Court—could not end treatment without evidence of what patient wantedThe Effect of CruzanCase established person’s right to refuse medical treatment, and to dieAlso set due process standard by which someone else could make decision if patient unable to do soCruzan’s parents went back to state court with evidence of conversations in which Nancy said she would never want to “live like a vegetable”Court ordered feeding tube removed; she died 12 days later
78Identifying the Main Idea How has the Court’s theory and use of substantive due process changed?Answer(s): The Court shifted its use of substantive due process from property rights to personal rights.
79Procedural Due Process Procedural due process has a very different history from substantive due process. Procedural due process grew out of Magna Carta, the 1215 document that required the English king to follow the law of the land.Most attention focuses on life, liberty issues as due process applies to arrest, prosecution of persons accused of crimesIssues typically involve depriving people of personal property, land1970s: concept expanded to include other benefits, education, statusesProcedural Due Process and Property RightsJohn Kelly, others, challenged constitutionality of procedures for termination of federal financial aidCourt ruled Kelly entitled to full hearing before benefits terminatedDecision changed way all government benefits are administeredAid payments are form of propertyGoldberg v. Kelly (1970)
80Stanley v. Illinois (1972)Illinois law defined “parent” as father and mother of child born to married couple, and the mother—not father—of child born to unmarried couplePeter Stanley not married to Joan Stanley, mother of their three childrenState removed children from Stanleys’ home when Joan died because according to state’s definition, Peter Stanley was not parentPeter Stanley sued state to regain custody of children1972: Court agreed that Stanley had been denied due process, and that treating unwed fathers differently violated equal protection clauseCourt said unwed fathers entitled to due process hearings to determine fitness as parent before children can be made wards of stateAlso established what Constitution requires in way of due process for anyoneBefore government at any level can deprive person of rights or property, person must at least be given formal notice, hearing to meet requirements of procedural fairness
82Procedural Due Process and Juvenile Justice By 1899 states recognized that juvenile offenders should be treated differently from adult criminals. Unfortunately, juvenile proceedings were often informal and did not include due process protections. In the 1967 landmark case In re Gault, the Court extended many of the due process requirements of adult proceedings to the juvenile justice system.Background to Gault15-year-old Gerald Gault taken into custody following complaint by Arizona woman who believed him to be person who made lewd phone call to herMother went to juvenile center, learned son would have juvenile court hearing next afternoon—never told what he was charged withNeither Gault nor parents advised he could have attorney; judge took no testimony from family; no one testified under oath; no record of proceedings; accuser not required to appear, denying right to confront, cross-examineJudge found Gerald guilty, sentenced him to state industrial school till 21
83Procedural Due Process and Juvenile Justice The Gault DecisionArizona law—Gault had no right to appeal conviction, punishmentAppealed to Supreme Court claiming minors should have same due process rights as adultsCourt agreed: neither 14th Amendment nor Bill of Rights for adults aloneCondition of “being a boy does not justify kangaroo court”Gault’s ImpactGault gave juveniles most of same due process rights as adultsRights to know what they are charged with, to counsel, to confront witnessesDid not give all same rights—in most states juveniles still do not have right to trial by jury1984, Schull v. Martin: Court ruled that due process for juveniles does not include the right to be released from custody while they are awaiting trial.
85What is procedural due process? SummarizingWhat is procedural due process?Answer(s): possible answer—the requirement that government must follow certain procedures before depriving citizens of life, liberty, and property
86Simulation Terrorists and Due Process Should suspected terrorists receive due process of law?The Fifth and Fourteenth Amendments guarantee that Americans may not be denied life, liberty, or property without due process of law. However, the Supreme Court has applied this protection in some very different ways. Use what you have learned in Section 3 to complete this simulation about a fictional due process case being argued in the Supreme Court.
87Simulation (cont’d.) Roles Chief justice of the United States Associate justicesAttorneys for the defendantAttorneys for the plaintiffAttorneys for the American Center for Civil Justice (ACCJ)Attorneys for Terrorism Victims and Survivors for Justice (TVSJ)
88Simulation (cont’d.) The Situation Number of people suspected of plotting, having committed terrorist acts against United States imprisoned at U.S. military base in another countryHave not been charged with a crimeHave not had hearing, been brought to trialHave not been allowed to hire attorneys to represent themSeveral imprisoned for more than two yearsTwo are U.S. citizens, others citizens of other countriesCivil rights group has appealed to Supreme Court on detainees’ behalf, asking prisoners receive due process
89Simulation (cont’d.) Oral Arguments Attorneys for both plaintiff, defendant will present oral arguments to Supreme CourtPlaintiff’s argument presented first, followed by defendant’sJustices may interrupt each argument to ask questionsAfter each side has made argument, Court will rule on question of what, if any, due process rights detainees may be entitled toCourt may order due process for all, some, or none
90Simulation (cont’d.) Debriefing “Those who would give up essential liberty to purchase a little temporary safety, deserve neither Liberty nor Safety,” is a quote attributed to Benjamin Franklin. Use what you have learned about due process to discuss the trade-off between liberty and safety today.
91Section 4 at a Glance Federalism and the Supreme Court Treaties and States’ Rights Learn about the relationship between federal law, such as treaties with other countries, and state laws.Learn about the distribution of power between the federal and state governments.Arguing a Federalism Case Use your knowledge to argue a Supreme Court case involving the commerce clause, states’ rights, and the Eleventh Amendment.
93Federalism and the Supreme Court Reading FocusIn Chapter 4 you read that federalism is a system of government in which power is divided between a central government and regional governments. The Constitution gives the national government power over some issues and reserves to the state governments power over other issues. The balance of power between the national government and the states shifts from time to time as a result of legislation and Supreme Court decisions.
94Treaties and States’ Rights Hunting and fishing are typically regulated by state governments. Should the federal government have any power over state-regulated activities, such as restricting the hunting of certain animals within a state’s borders?Protecting Migratory BirdsWild animals considered property of state in which they livedWild animals, especially birds, move across boundaries freelyFederal government tried to use this to protect migratory birdsCourts struck down federal bird hunting regulations as unconstitutional1916: treaty to protect birds migrating between U.S., CanadaCongress passed Migratory Bird Treaty Act to prohibit killing, capturing birds covered by treatyMissouri tried to prevent federal game warden from enforcing act as unconstitutional exercise of federal power–
95Treaties and States’ Rights (cont’d.) Court Hears Missouri v. Holland Feds argued Constitution gave president power to make treatiesNoted supremacy clause making federal laws, treaties the supreme law of the landMissouri argued Bird Treaty Act unconstitutional intrusion into Missouri’s sovereignty, Congress should not be able to use treaty power to pass law that would be unconstitutional if passed directlyHolland’s ImpactCourt upheld lower court ruling that act was constitutionalObserved some matters require national actionFederal government can, under international treaty, regulate activities within states it might otherwise have no power to controlMigratory birds do not recognize borders, are no one’s propertyHolland clarified and expanded the limits of federal power to conduct international relations. Other cases since have continued to expand authority over state laws when the nation is dealing with international issues.
96WHAT DO YOU THINK?1. Should the hunting of migratory birds be controlled by the states, which license hunters, or by federal authorities? Explain your point of view.2. Was the Migratory Bird Treaty Act a proper expansion of federal power over the states? Why or why not?3. Could the federal government amend the Constitution by making a treaty with another country? Explain.
97Expanding Federal Authority Commerce Clause of ConstitutionCongress has power to regulate commerce with foreign nations, the states, Indian tribesCongress’s use of clause, Supreme Court’s interpretation of it, has significantly defined balance of power between national government, states, helped shape American lifeUse of powerCongress has tried to use power to regulate commerce to end racial discrimination in United States1964, Heart of Atlanta Motel v. United States: Court upheld use of power, said federal government could force private businesses not to discriminate against African AmericansSaid Heart of Atlanta Motel engaged in interstate commerce since 75 percent of guests were from out of state; racial discrimination had disruptive effect on interstate commerce
98Identifying the Main Idea What part of the Constitution has had the greatest impact on changing the Constitutional system of federalism?Answer(s): the commerce clause (Article I, Section 8, Clause 3)
99The Guns in School Case1992: Alfonso Lopez arrived at San Antonio high school carrying concealed handgunSchool authorities received tip, confronted LopezLopez admitted he had .38 caliber revolver, five bulletsLopez arrested, charged under Texas law with firearm possession on school premisesNext day state charge dropped when Lopez charged with violating federal Gun-Free School Zones lawLaw makes it illegal for anyone to have firearm in school zoneLopez convicted in federal court, sentenced to 6 months in jail5th Circuit Court of Appeals reversed convictionFederal authorities appealed to Supreme Court
100The Arguments The Court’s Ruling Lopez’s attorneys said having gun at school may be criminal offense, but federal law was unconstitutional exercise of Congress’s power to regulate interstate commerceGovernment argued guns in school zones could lead to violent crime, making people afraid to travel in the area; fear of violent crime might interfere with students’ learning; both could affect the economyThe Court’s Ruling1995, United States v. Lopez: Court ruled 5–4 that Gun-Free School Zones Act unconstitutionalPossession of gun in local school zone not economic activity, would not affect any sort of interstate commerceLopez first case to limit Congress’s use of commerce clause since 1930sCourt had duty to prevent federal government from further expanding powers to regulate conduct of a state’s citizens
102The Medical Marijuana Case Using marijuana illegal under federal law since 19371996: California voters approved marijuana use for medical purposesTwo Californians, Diane Monson and Angel Raich, used home-grown marijuana to treat chronic painDoctor said Raich’s pain so severe, she could die without marijuana to relieve it2002: federal authorities seized and destroyed six marijuana plants grown by MonsonMonson, Raich sued federal governmentCourt of appeals ruled feds had no right to interfere with right to grow, use marijuana under California lawGovernment appealed decision to Supreme Court
103The ArgumentsRaich, Monson claimed federal law allowing seizure was violation of commerce clause because they were not engaged in interstate commerceSaid marijuana home grown—seeds, soil, equipment all from state in which they lived; therefore product was entirely of intrastate commerceClaimed federal government’s enforcement action was unconstitutionalGovernment based its argument on supremacy clauseArgued federal government does not recognize medical use of marijuana, Constitution makes federal law supreme over state lawAlso argued use of home grown marijuana for medical purposes affected illegal trade in marijuana coming into California from other states, countriesClaimed this gave government right to regulate home grown marijuana
104The Raich Decision2005, Supreme Court ruled 6–3 to uphold government’s use of commerce clause to seize home grown marijuana plantsCourt accepted government’s argument that home grown medical marijuana affects interstate commerceJustice John Paul Stevens’s majority opinion noted marijuana popular part of commerce, commerce clause applies whether commerce is legal or notSaid if Monson, Raich not growing own marijuana, would have to buy somewhere else which would ultimately have impact on the interstate commerce Congress can regulateJustice Sandra Day O’Connor’s dissenting opinion noted “Federalism promotes innovation by allowing…a single courageous state, if its citizens choose…[to] try novel social and economic experiments without risk to the rest of the country…”Added that principles of federalism should protect California’s experiment from federal regulation
106SummarizingHow did Justice O’Connor think the decision in Gonzales v. Raich affected federalism?Answer(s): Justice O’Connor believed it gave the federal government too much power.
107Simulation Arguing a Federalism Case Should Native Americans be able to operate casinos on reservations in states where such gambling violates state law?Native American groups are considered “domestic dependent nations” within the United States. Each group has the right to have its own government on a reservation that operates mostly independently of the laws of the state within which the reservation is located. Using what you have learned, complete this simulation involving issues of federalism and having a casino on a reservation.
108Simulation (cont’d.) Roles Chief justice Associate justices Attorneys for plaintiff, Native American NationAttorneys for defendant, the StateAttorneys for the National Native American Council, a Native American civil rights groupAttorneys for the American Association for Family Values, a group that opposes casinos and gambling
109Simulation (cont’d.) The Situation Native American nation asked state to allow to open casino on reservationState refusedNative Americans sued state in federal court under provisions of Indian Gaming Regulatory Act of 1988State filed motion to dismiss caseFederal district court denied state’s motion, state appealed to circuit court of appealsCourt of appeals granted state’s motion, dismissed caseNative American nation appealed to Supreme CourtAppeals court considered, did not address, commerce clause issues
110Simulation (cont’d.) The Hearing Attorneys for both plaintiff, defendant will present oral arguments to Supreme CourtPlaintiff’s position presented first, followed by defendant’sJustices may interrupt each presentation to ask questionsAfter each side has made argument, Court will rule on plaintiff’s request that it reverse court of appeals, allow suit in district court to proceed
111Simulation (cont’d.) Debriefing While the Supreme Court is deliberating its decision, write a one-page opinion of your own, revealing how you would decide the case if you were on the Court. After the Court’s decision is read, discuss with the class and the justices any differences you see between the decision and any separate opinions the justices may have written and which opinion, if either, you think is better reasoned.