Law Chapter 6 Study Guide

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In law, there is "no rest for the weary." Lawyers face new clients and new legal problems to research and master daily. Law demands a great amount time, reading, writing in order "to do it right" and be a good lawyer. Make goal to read 10 books in next calendar year, add more yearly. If you enjoy reading and writing on your free time (and solving problems), you should do well in law school. If not, consider whether the legal profession is right for you or improve those skills before you start law school. LEARNING OBJECTIVES : understand the origin and nature of the power of judicial review, the role of the courts in constitutional interpretation, the various modes of constitutional interpretation utilized by the courts, the constitutional doctrines of federalism, separation of powers, due process of law, equal protection, and civil liberties. SUMMARY : Extensive coverage of Marbury v. Madison , the case that establishes the power of judicial review for courts. The role of judicial review in constitutional law, with an emphasis on judicial restraint and judicial activism . It also explores the role of judicial review by an unelected judiciary in a democratic system. The major doctrines surrounding the modes of constitutional interpretation. Just as scholars disagree over the wording of the Constitution, they also disagree over how the Constitution is to be interpreted. Examines original intention (intent), interpretivism and non-interpretivism, with a description of each approach and some of the arguments for and against each. 5 major constitutional doctrines : federalism, separation of powers, due process of law, equal protection jurisprudence, and civil liberties. Introductory foundation in order to understand the role of each of the doctrines in constitutional law. Federalism focuses on the delineation of powers of the national government versus the states. Separation of powers examines the conflicts among the three branches of the national government. Due process and equal protection are centered on the issues of fundamental fairness in the political system. Finally, civil liberties looks at the constitutional doctrines involving freedom of religion, speech, and the press. OVERVIEW TO CONSTITUTIONAL LAW VID : Study of constitutional law is half studying the text of the Constitution itself and half studying the thousands and thousands of US Supreme Court cases which elaborate and extrapolate on what the Constitution itself means and how it applies in scores of different factual situations and scenarios. The latter, you will see this illustrated later on in this module when we look at Marbury v Madison and McCulloch v Maryland, two seminal Supreme Court cases of the early 1800s. However, first let's talk about the Constitution itself. This may seem like a silly question, but what does the Constitution do? Well first, it creates the federal government . That is, in 1789 when the US Constitution was ratified, and first took effect, it took powers from the 13 original states and gave some of those powers to the newly created federal government. Thus, it is said that the federal government is a government of specific enumerated powers, and only those powers, with the residual belonging to the state governments . The residual of the power belonging to the state governments . And so the Constitution creates the federal government. And it divides powers between the state and the federal government under our system of federalism that we've discussed in a previous class and lecture. Second, within the Constitution, different branches from within the federal government are created . And then the Constitution divides powers within those federal branches . Or in the parlance of constitutional law, separation of powers between those branches of the federal government . More on this in a moment. Finally, in terms of what the Constitution does, the Constitution also provides a safeguard for civil liberties . Most of what we consider our civil liberties , freedom of speech, freedom of religion, freedom of assembly, things of that nature, are contained in the Bill of Rights , which are the first 10 amendments to the US Constitution which were not ratified until 1791, two years after the Constitution itself went into effect. However, even though most of our civil liberties are contained in the Bill of Rights, there are several protections in the text of the Constitution itself, civil liberty protections . First, you have a prohibition against quote, " ex post facto laws ". Well, what does that mean? Well, a prohibition of ex post facto means that Congress cannot criminalize something retroactively and

that something that has already occurred . For example, if Congress wanted to criminalize drinking soda, Coca-Cola, it could only do so moving forward. It could not constitutionally pass a law saying anyone who ever drank Coca-Cola or soda is guilty of a criminal offense. That would be a violation of the prohibition against ex post facto laws. Another civil liberty enshrined in the text of the Constitution itself is something called bills of attainder . Bills of attainder are legislation where people are listed by names and not by offenses, or by some immutable physical characteristic and that your name or your characteristic makes you criminal . So it wouldn't be constitutional, for example, for Congress to pass a law saying all people named Nancy are now felons. Or all persons with blond hair are felons. This is what we mean by a prohibition on bills of attainder. A third example of civil liberties which are protected in the text of the Constitution itself is contained in the treason provision in the Constitution. Now as you may know, the crime of treason is the only crime whose elements are specifically spelled out in the Constitution. Treason is levying war against the United States, or providing aid and or comfort to other countries as against the United States . This provision is in Article III of the Constitution, which I actually had you read for this week's module. Well, within the treason clause, there's also protections built into those very same provisions. Because treason is the most serious criminal offense one can commit . And again, the only crime specifically listed in the Constitution. So we have certain protections that are also enumerated. For example, according to Article III of the Constitution in the treason clause, you cannot be convicted of treason unless at least two witnesses have witnessed a covert act of treason that you have allegedly committed and that those two witnesses must both testify in open court about that same covert act, overt act. OK. So I've given you three different illustrations in terms of the text of the Constitution regarding the protection of civil liberties. And more on the Bill of Rights in a subsequent lecture in this module. Now let's talk briefly about the Constitution and how it separates powers between the various branches of the federal government. The very first part of the Constitution, Article I, deals with the powers of the Congress . Then in the next section of the Constitution , Article II, the powers of the executive are addressed . And finally, in Article III, the powers of the federal judiciary are delineated . A great majority of the Constitution is contained in these first three articles of the Constitution, even though the Constitution has more articles than just articles one through three. In fact, we have seven articles in the Constitution to be exact. But articles one through three span roughly 3,300 words of the 4,400 words of the Constitution, which is over 75% of the document . Now, if you know that there's a constitutional principle relating to one of the branches and you are asked where it is in the Constitution, you can usually guess and be correct. That is, if I were to ask you where in the Constitution does it specify that Congress has the power to coin money or to regulate commerce? You should rightly guess Article I , and you'd be right. Specifically Article I section eight, which contains a whole laundry list of enumerated powers of Congress that we'll see in McCulloch v Maryland . However my point is that virtually all of the powers and provisions about Congress are in Article I . Similarly, if I were to ask you, where in the Constitution is the Supreme Court created? Your answer would be Article III, which deals with the federal judiciary . Or if I asked you where does the president have the power to be commander in chief, Article II . OK, well which do you think is the most important branch in general, the executive, the legislature, the courts? Well, at least in theory, all three branches are supposed to be coequal branches of government. And we have a system of checks and balances built into the Constitution. For example, while Congress has the power to declare war and raise and maintain an army and the Navy, the president, the executive, is listed as the commander in chief of the armed forces. So you have a check and balance on each branch's powers in the Constitution. However, in terms of general importance, you should know that there are some constitutional scholars who have argued that at least in terms of how the Constitution is structured, and how it's worded, and how it's laid out, the most important branch, according to these scholars, is the legislature, Congress . Why? Well, these scholars argue that the framers listed the Congress first in the Constitution, Article I . Then the executive, the president, second, Article II, and then the court's third, Article III. So proof of the importance of the branches, some argue, is illustrated by the simple placement and order of the three branches in the Constitution. Second, if you look at word length dedicated to each branch, by far the Constitution elaborates and

specifies the most as it relates to Congress . So I mentioned this a moment ago. If you look at the entire Constitution, it runs about 4,400 words in length, 4,487 words to be exact. Now almost half of this amount is spent in Article I dealing with the powers of the legislative branch, 2,248 words of the 4,487 words. But if you look at the powers of the executive in Article II, Article II runs about 1,015 words, so just under 50% of the words used in Article I . Well how about Article III? How about the federal courts? 369 words. That's it. Consider that articles one and two combined are thousands of words long. And all that the framers had to say about the federal judiciary is contained in a mere 369 words. It perhaps illustrates what Alexander Hamilton stated in the Federalist Papers when he described the federal judiciary as quote, "the least dangerous branch " unquote. Least dangerous branch of government. One final note about Article III and the federal courts. When you read Article III, which I have asked you to do so for this week's module, you'll see that the Constitution indicates that there shall be quote, "one Supreme Court and such inferior courts as Congress may ordain and establish." This means that if Congress really wanted to, it could abolish the federal court system, except for the US Supreme Court . Now while this is theoretically possible, I understand it is not likely. But Congress could do so because Article III specifies one Supreme Court and such inferior courts that Congress may ordain and establish. Also note that Article III does not specify how many justices are to serve on the Supreme Court . It could be as little as one person if Congress so desired. When first established, Congress set the number at six as part of the Judiciary Act of 1789. That is five justices plus one Chief Justice. In 1801, Congress reduced it to five seats, although that number was quickly changed in a subsequent Congress. During the Civil War, the number of justices swelled to 11 justices. Now it's been nine justices since 1869 and the administration of Ulysses S. Grant. When Franklin Delano Roosevelt tried to pack the court in 1937 with as many as 15 justices, that proposed legislation failed in Congress. And the total remains, nine in terms of justices . Finally, if you have not done so yet, or if it's been a number of years since you've last done this, please skim through the US Constitution as part of this week's module. It's truly an excellent legal document worthy of reading and studying just to marvel at its genius. It is also the oldest written Constitution in the world . Every other country in the world, the roughly 190 or so countries that span the globe, all have constitutions that come after the United States Constitution. And many of those constitutions are in fact based upon provisions contained in the US Constitution. AMERICAN GOVERNANCE: The American Government, despite its shortcomings, is one of the most successful government systems in the world if evaluated based upon the country's stability and prosperity. And it all evolved from one very important document, the United States Constitution. Every state also has a state constitution which is the foundation to that state's government (as allowed by Article IV of the U.S. Constitution.) But such state constitutions cannot supersede the U.S. Constitution . For example, when a number of states incorporated anti-gay marriage provisions into their state constitutions, these state-constitutional provisions were struck down and voided by the U.S. Supreme Court as violating the 14th Amendment Due Process and Equal Protection clauses of the U.S. Constitution. See Obergefell v. Hodges, 576 U.S. (2015). CORE PRINCIPLES of the U.S. Constitution, as well as the early caselaw interpreting the Constitution, include concepts of personal liberties, electoral governance, tripartite system of governance, and federalism . Obviously, the U.S. Constitution includes much, much more. But Capstone is a review class so we will just discuss these primary concepts. (1) Personal Liberties : U.S. Constitution - through its plain text or through interpretive caselaw - ensures citizens of the United States (and also to a great extent, visitors to the United States) certain inalienable rights or personal liberties: right to vote, right to freely practice religion, right to own guns, right to a free press, right to own property , many rights relating to protection from unjust criminal prosecution and sentencing. BILL OF RIGHTS :

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1. Go to any church you like. Tell us you hate us. Ridicule us in public, go for it. Say almost anything in almost any setting. 2. Keep weapons in your house, car, or hidden on you, if they are legal. 3. We can’t take over your house during a war and let soldiers sleep in your beds. 4. We can't come in your house, read your emails, go through your trash or mail without a warrant. 5. Due Process. No arrests just because, fair trial before imprisonment. We pay you for your stuff if we ever decide to take it away. 6. The courts are there for you. You have rights: a lawyer, a quick and open trial, and a jury of your peers gets to decide your innocence if you are ever accused of a crime. 7. In Civil Law, you can sue or they can sue but a jury of your peers gets to decide who is right and wrong. 8. If arrested, we can't torture or force you to life in prison by charging you so much money that you couldn't afford to get out of jail. 9. Any right left out of this list is automatically yours to keep. 10. If you want a new right then get the law passed yourself. (2) Electoral Governance: Our government, both federal and state, is composed of representatives elected by the people . In fact, a primary reason for the American Revolution was the American colonists' anger at "taxation without representation" by Great Britain. Therefore, the Founding Fathers ensured that any American government would be for the people and by the people . There are numerous provisions throughout the Constitution describing election requirements and election processes for a variety of government officials. One alleged shortcoming in the Constitution (or at least one provision of the Constitution which worked fine in the 1700s and 1800s but may be outdated today) is the " Electoral College " found in Article II of the Constitution which elects the U.S. President. In recent years, two presidential candidates who won the most votes of American citizens (known as the popular vote ) did not earn the presidency because they did not win enough votes of the Electoral College. (3) Tripartite System: of governance at the federal and the state level. This is known as the " separation of powers " between the legislative, judicial, and executive branches of government. Each of these branches has certain enumerated rights and responsibilities under the Constitution (and more as interpreted by caselaw) which should not be interfered with or usurped by another branch. The respective dates are:  Legislative Branch is tasked with writing the laws. At the federal level, this branch is The Congress. At the state level, this branch is the state legislature.  Judicial Branch is tasked with interpreting the laws. At the federal level, this branch is the federal courts. At the state level, this branch is the state court systems. The U.S. Supreme Court is the highest authority of this branch.  Executive Branch is tasked with enforcement of the law. At the federal level, the head of this branch is the President. At this state level, the head of this branch is the Governor. There are infinite ways in which one branch could unlawfully interfere with the role of another branch. As just one example, a court could issue an opinion rewriting a law which had been enacted by the legislature. This would be an infringement of the judicial branch into the legislative domain of writing laws. (4) Federalism: One Constitutional concept which was highly debated during the drafting of the Constitution, was a major element leading to the Civil War, and is still debated today, is

Federalism. Federalism is the division of governance rights and responsibilities between the federal government and the respective state governments. Supreme Court Trivia Quiz Answers SELECTIVE INCORPORATION VIDEO: Today we talk about the Bill of Rights being sacrosanct and indispensable to our democracy. And many of the first 10 Amendments contain multiple independent rights within each Amendment. The First Amendment, for example, contains a bevy of individual civil liberties such as freedom of speech, freedom of association, freedom of assembly, freedom to petition the government, freedom of religion, and the Establishment Clause, the separation of church and state. All within the First Amendment. Yet few realize that the Bill of Rights was wholly inapplicable to state governments until the 20th century . And even now, there are some parts of the Bill of Rights that are still not binding on state governments to this day. Well, why were the Bill of Rights not binding? The Bill of Rights as initially constructed was a list of restrictions against the newly created federal government that was added to the end of the Constitution to placate the anti-Federalists and to ensure the ratification of the Constitution. Thus the Bill of Rights only applied to the federal government and not to the states . Now if you don't believe me on this you can see this same view expressed in an early Supreme Court opinion called Barron v. Baltimore, an 1833 opinion. A unanimous opinion authored by the way, by America's great Chief Justice of the Supreme Court John Marshall, who also penned Marbury v. Madison, which we will turn to shortly. In Barron v. Baltimore, a man named John Barron ran a wharf in the Baltimore inner harbor and he sued the city of Baltimore after the city had diverted water away from his docks, which Barron claimed damaged his business. John Barron claimed this was all a violation of the Due Process Clause of the Fifth Amendment, that no person shall be deprived of life, liberty, or property without due process of law. In 1833 the Supreme Court ruled in favor of the city of Baltimore and against John Barron and famously held that Barron could not use the Fifth Amendment Due Process Clause to sue a state government or a subsidiary of the state like the city of Baltimore. Well, then how do we get to the situation like today where most of the Bill of Rights do apply to the state government as well as the federal government? Well, we have to fast forward to after the Civil War, Congress passes and the country ratifies the Thirteenth, Fourteenth, and Fifteenth Amendments , which are collectively called the Reconstruction era Amendments . So named because they were all ratified between 1865 and towards the end of the Reconstruction era. The Thirteenth Amendment, ratified in 1865, banned involuntary servitude except when it's a punishment for a crime when you've been duly convicted. It did away and abolished the institution of slavery. The Fourteenth Amendment, ratified in 1868 , has five separate clauses and contains many different provisions but perhaps most famously, it contains the Equal Protection Clause , that no state may deprive its citizens of the equal protection of the laws. The Fourteenth Amendment also famously contains a Due Process Clause , another Due Process Clause, why do we have two? Remember we have one in the Fifth Amendment. Well, remember, Barron v. Baltimore, the Fifth Amendment only applies to the federal government. So after the Civil War, we have another Due Process Clause added to the Constitution in the Fourteenth Amendment to be applicable to the state governments. So it's one of those unique provisions that we have specified twice in the Constitution, that no person shall be deprived of life, liberty, or property without the due process of law. More on the Fourteenth Amendment Due Process Clause and how it relates to the Bill of Rights in a moment. But finally, in terms of finishing up the Reconstruction era amendments, the Fifteenth Amendment was ratified in 1870 and provided in essence that the right to vote may not be infringed upon based upon somebody's race or previous condition of involuntary servitude . Now in a series of cases starting in the late 1800s, the Supreme Court started to grapple with the question of what the Due Process Clause of the Fourteenth Amendment means. What does it mean that no person shall be deprived of life, liberty, or property without due process of law? Well, we know that it means that these things, life, liberty, property, cannot be taken away from you without some notice, a hearing, some opportunity to contest the government action. So we know the process. We also know what life is, right? And we know what property is, right? But what is liberty, that no person shall be deprived of life, liberty, or property without due process of law? How do you define

liberty? Starting in 1925 in a famous Supreme Court case called Gitlow v. New York , through a process today called selective incorporation , the Supreme Court began to selectively apply provisions of the Bill of Rights as being binding on the state governments vis-a-vis the word liberty in the Due Process Clause of the Fourteenth Amendment. In Gitlow v. New York, the defendant, Benjamin Gitlow, was prosecuted and convicted for handing out anti-war, anti- government fliers towards the end of World War I. He was prosecuted under a New York sedition law which prohibited such conduct. Well, Benjamin Gitlow was represented by a brilliant lawyer of that generation, and indeed of American legal history, Clarence Darrow. And Darrow argued at trial and then on appeal that the conviction wasn't lawful because it was argued the New York law violated the First Amendment, particularly freedom of speech. While Gitlow's conviction was upheld by the court, the court did for the first time hold that a provision of the Bill of Rights could be binding on the states if the provision at issue dealt with one's liberty. So freedom of speech was the very first right incorporated in 1925 in Gitlow v. New York. From 1925 and continuing through today the Supreme Court has selectively incorporated various provisions as being binding on the states vis-a-vis the Due Process Clause of the Fourteenth Amendment. Now you should note that the court rejected the concept of total incorporation, meaning just to incorporate the entire Bill of Rights altogether, and instead decided to do it in a piecemeal fashion over the next just under 100 years and this doctrine again is referred to as the doctrine of selective incorporation . And to this day not everything that you see in the Bill of Rights is binding on the state governments. In fact, it wasn't until 2010 that the Supreme Court finally incorporated the Second Amendment right to bear arms as being binding on state governments. Before 2010 if a state passed a law to take your firearm away or to restrict gun ownership in some way, it would not have been a violation of the Second Amendment. However, in McDonald v. City of Chicago in 2010, the Second Amendment was held to be binding, selectively incorporated, on the state governments. And in that particular case, the city of Chicago and the State of Illinois. McDonald v. Chicago with the Second Amendment, this was the last and the latest of the rights to be incorporated, selectively incorporated, by the Supreme Court and to be held to be binding on state governments. Again, that occurred in 2010. But there are still four major things not yet incorporated : (1) the entire Third Amendment the right to be free from having troops quartered in your home. (2) the entire Seventh Amendment, the right to jury trials in civil cases. In fact, you might remember when we talked about jury trials I mentioned that the Sixth Amendment right to jury trials in criminal cases is binding on all states. It was incorporated by the Supreme Court but that the right of jury trials in civil cases under the Seventh Amendment is not binding on state governments. Thus if you have that right in a particular state it is because that state has granted you that right. So we have the entire Third Amendment not yet incorporated, the entire Seventh Amendment not yet incorporated. (3) the right to indictment by a grand jury under the Fifth Amendment. Again, you might remember when we covered the anatomy of a criminal case, I mentioned that grand jury indictments are utilized federally and in about one-half of the state governments. Now the reason why the other half of the states have not adopted grand jury indictments is that they're not constitutionally required to do so, at least as of yet. (4) the right against excessive fines under the Eighth Amendment. So we have those four parts not yet incorporated. We will next turn to the practice of judicial review and the seminal and famous Supreme Court case Marbury v. Madison of 1803 and then a follow up case I'll have you look at called McCulloch v. Maryland , and after we have covered the practice of judicial review and the famous cases of Marbury v. Madison and McCulloch v. Maryland and towards the end of our overview of the field of constitutional law, I'll double back again to the Due Process Clauses of the Fifth and Fourteenth Amendments but also to the Equal Protection Clause of the Fourteenth Amendment, both the Due Process Clause and the Equal Protection Clause, both of these clauses have become so very important to the operation of our government today. To understand judicial review and seminal case of Marbury v. Madison, read Article III of U.S. Constitution : SECTION 1. 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,

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at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office. SECTION 2. 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 States, Citizens or Subjects. 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. The 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. SECTION 3. Treason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted. JUDICIAL REVIEW VID: The practice of judicial review is the power of a court to declare acts of government bodies which are contrary to the Constitution to be null and void. The practice of judicial review is truly an American invention and the practice of judicial review is a legal practice, a legal doctrine, as the United States has practiced it since 1803 that other countries around the globe have emulated and now have adopted the practice in their own court systems as well. Thus an analysis of judicial review, whether as a matter of US domestic law or the practice of another country in a comparative law class starts with the US Constitution, specifically Article III, and then a reading of the famous foundational Supreme Court case Marbury v. Madison, which was decided in 1803. In the US Constitution, Article I, the very first provision, very first article, very first section, deals with the power of the Congress and runs about 2,400 words in length. Article II, the next section, deals with the powers of the executive or the president and runs about a thousand words. So by word length alone, the treatment of the Congress and the president by the framers is between 3,000 to 4,000 words. Yet when you look at Article III, which deals with the federal judiciary, it's just under 400 words. So by word length alone the federal judiciary and Article III are a distant third in terms of the framers' attention. Perhaps this is why Alexander Hamilton in Federalist Paper number 78 referred to the judiciary as quote, "the least dangerous branch " unquote. In Federalist Paper 78 Hamilton said the proposed judiciary, would be the weakest of the three branches of government because it had no influence quote, "either over the sword or the purse, and it may be said to have neither force nor will but merely judgment" unquote. Alexander Hamilton in Federalist Paper 78 was quoting Montesquieu quote, "of the three powers, the judiciary is next to nothing" unquote. So at this point, you might say, wait having the power of judicial review and having the ability to declare acts of the president and/or the Congress or any other aspect of the government to be null and void is a pretty expansive and impressive power, right? Yet when you read Article III, which I have asked you to do for this class, you will not find the phrase judicial review anywhere in Article III or elsewhere in the Constitution for that matter. Remember, Article III is, after all, only a few hundred words long. Now at the beginning of Article III in those few hundred words in Section I of Article III, it says " there shall be one Supreme Court and such inferior courts as Congress may ordain and establish ." Then immediately after that in Section II of Article III, there's a listing of the Supreme Court's jurisdiction, both original jurisdiction like a lawsuit between two states, for example, New York v. New Jersey, or Florida v. Georgia, which by the way were cases that the Supreme Court has in fact heard, original

jurisdiction and then appellate jurisdiction. Now the types of original jurisdiction delineated in Article III are pretty narrow and limited, like one state suing another. And then the second part of Section II then says in all other cases the Supreme Court shall have appellate jurisdiction. So clearly, Article III empowers the Supreme Court to serve as our nation's court of last resort in lawsuits but it does not provide the power of judicial review, that is the power to hold other branches of the government accountable under the Constitution . So where in the world does this power come from? It comes from one of the earliest cases heard by the US Supreme Court, a case called Marbury v. Madison dealing with Section 13 of the Judiciary Act of 1789 , one of the very first acts passed, one of the very first statutes promulgated by Congress in 1789, the year the Constitution went into effect. We will discuss Marbury v. Madison in the next segment of this module. Conflict of Constitutional Provisions : McCullough v. Maryland (1819) is one of the most important decisions rendered by the Supreme Court in its long and storied history. In significance, the case ranks up at the top of a list of most important cases alongside cases such as Marbury v. Madison , Gibbons v. Ogden , Brown v. Board of Education , Miranda v. Arizona , and Gideon v. Wainwright . It’s important because it deals with the powers of the federal government verses the powers of state governments . The case also deals with how to harmonize seemingly conflicting provisions such as the "necessary and proper" clause of Article I, section 8, with the Tenth Amendment . It is also an important early illustration of the power and importance of the Supreme Court dealing with matters of constitutional law . To fully appreciate McCullough v. Maryland , it will be helpful for you to review the following three constitutional provisions : (1) powers of Congress as enumerated in Article I, Section 8 (and please make note of the "necessary and proper" clause towards the end of this section). (2) supremacy of federal law under the Supremacy Clause of the Constitution as enumerated in Article VI. (3) residual power of State governments as reflected in the Tenth Amendment. ARTICLE I SECTION 8: 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 sub- ject 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 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 define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations; 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 a 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, sup- press Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for gov- erning 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 Au- thority 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, Maga- zines, Arsenals, dock-Yards, and other needful Buildings; And To make all Laws which shall be necessary and proper for carrying into Exe- cution 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.

SECTION 9. The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person. Article VI (and the Supremacy Clause): All Debts contracted and Engagements entered into, before the adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation. 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. The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States. 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. 35 min video , Historical reenactment of the famous Supreme Court case of McCullough v. Maryland Court and Constitutional Interpretation Handout , DO NOT confuse "textualism" with "originalism," as they are two different concepts (even thought they appear similar in certain respects). INTERPRETING THE CONSTITUTION VID : How do we know what the Constitution means. The people who wrote it believed lots of things that we don't believe now. They believed it was OK to have slaves, to deny the vote to free blacks and women. They would have been astonished at the suggestion that a man could marry another man. And we have amendments about some of those things. So in some ways our Constitution is different from the framer's Constitution, but in some ways, it's the same . And so the question arises, does the fact that our values have changed, meaning that our understanding of the Constitution should change. Or is the meaning fixed for all time by the understanding of the people who wrote and ratified it . This is one of the big theoretical debates in constitutional law. If you spend time with law professors, you'll hear them talk about it a lot. So do Supreme Court justices. I'm going to suggest to you that, in fact, the whole disagreement is based on a misunderstanding, that we can clear up the issue pretty easily. But first, let's give the two sides their say. Originalists, the people who believe that the meaning of the Constitution doesn't change , have a pretty straightforward argument. The Constitution, or some part of it, gets enacted at a certain time. At that time, it has a particular meaning. And meanings don't change. They're set in stone. If you want to change the Constitution, Article Five tells you how to do it. Go through the amendment process . Here's Justice Antonin Scalia with more. JUSTICE ANTONIN SCALIA: “The major division, not just between the justices on the court, but in American jurisprudence, generally, that is, there are those who think that the Constitution is to be interpreted in such a way as to keep it up to date. That is, to say, it does not mean today what it meant when it was adopted. Some of its provisions change in order to keep up with the times. My friend Justice Breyer has that view. The other view, which is held by people who are called originalists, and I'm one of them, Is it the Constitution doesn't change. If you want to change it, there is an amendment provision. Amend it, it's not up to the Supreme Court to write a new Constitution, by deciding that things that never were there, all of a sudden, are there. I'm putting it rather tendentiously, I think, but those are the two basic approaches”. People who favor the evolutionary approach , or what's sometimes called the Living Constitution , believe that cases don't need to be decided the same way today as they would have been when the relevant constitutional provision was adopted. Why not. Well they're often not all that clear. But the basic idea is that the Constitution was intended to last for a long time. And that it has to grow with our changing society . Here's JUSTICE BREYER: “And therefore I look quite a lot to purposes or values and consequences. And the danger of my approach, which you've just heard

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iterated, is that I would substitute my view of what's good for what the Constitution is about. So I have to take care not to do that. So I write down my reasons very carefully so others can criticize, and amazingly enough, they do criticize. And the danger the other way, is in my view, we separate the law and the Constitution from life. Too rigid. It's got to be, if it's going to be lived for 1,000 years, brought down to the life of people today, which means you have to look how these values are applied to today's circumstances”. That's vague. And it's not all that convincing. But if you ask what the Supreme Court has done, the answer is that it seems to have followed the evolutionary theory. States used to segregate their public schools by race. They used to segregate their railroad cars. They used to ban interracial marriage. They used to say that women weren't allowed to be lawyers. And courts said that the Constitution allowed states to do all those things. But then, without a change to the words of the Constitution, the Supreme Court said no, states can't do that. So one point for the evolutionary view, it's what the Supreme Court has done . Another point, it's what the Supreme Court is going to do in the future, too. There's no way that the nation would accept it if the court tried to go back to the original understandings, under which it was OK for states to do those things. But does this just mean that we've decided that judges get to say what the Constitution means, that they get to change it however they think is best. Not necessarily. No one really says that judges should update the Constitution to keep it in tune with the times. That's a crazy thing to say, unless you really worship judges. JUSTICE ANTONIN SCALIA: Hamilton would jump out of his skin if he thought that the Constitution he supported allowed nine un-elected judges to change the meaning of the document from year to year. The originalists have a good point. The meaning of the Constitution shouldn't change just because some judges think it should. But the living constitutionalists have a point, too. The Supreme Court doesn't decide all its cases the way it would have when the Constitution was adopted. It's not going to start doing that, either. And almost no one would be happy if it did. Is there any way to hold on to both these points, to reconcile originalism and the living Constitution. Yes, there is. The better version of living constitutionalism is actually consistent with originalism. The key point, here, is that it's possible to have a constitutional provision whose meaning remains fixed, which is the originalist plan, but whose applications change, which is what the evolutionists want. Because this is such an important point, I'm going to illustrate it with a constitutional provision that doesn't actually exist. Suppose you wanted to make sure that people respected the Senate and you thought that dressing well was the key to being respected. So you put in the Constitution a clause saying, while engaged in debate, the senators shall wear the latest fashions. This tells you to do one thing in 1789, it tells you to wear a powdered wig and knee breeches. But now, doing that isn't complying with the latest fashions clause. It's violating it. So a case about this clause will come out differently now than it would have in 1789. That's not because the meaning of the Constitution has changed. It's because the clause itself tells you to look to what people think is fashionable at the time. Do we have any provisions like that in the real Constitution. There are three main types of provisions that you would expect to find in a Constitution. A lot of the Constitution is about the structure of government. The applications of those provisions are not going to change. Each state gets two senators in 1789, and now, and in the future. Then there are some provisions that are designed to eliminate specific practices. I call them backward looking provisions because they look back to something that happened in the past and say never again. We have provisions that ban slavery, for instance. And lodging troops in people's houses. Because we experienced those things and thought they were bad. Those provisions, too, applications will not change. But then, there are, or there might be, what you could call forward looking provisions. They say, here's a value that's important. We want this value to be respected. But we understand that people in the future may have different views about what it means to respect this value. And we want their understandings, not ours, to control. That's what the latest fashions clause does. People will have different ideas about what's fashionable, and if you want the senators to look good, you have to follow those future ideas. And if you look at the well-known evolutionary decisions, where the Supreme Court said for instance, that states can't segregate their schools or ban interracial marriage. They fit this model of forward looking provisions . The constitutional provision that's being enforced there is The Equal Protection Clause , which the court prohibits unfair/oppressive discrimination. And what the

court has done in these decisions is just to say, in deciding what's unfair or oppressive, we're going to look at what people think now, not what they thought hundreds of years ago. So forward looking provisions are possible. That's what the example of the latest fashions clause shows. And they fit with what the court has actually done. They explain the so-called evolutionary decisions. Those decisions might still be wrong. The court might have taken something that wasn't supposed to be a forward looking provision and started reading it that way. But if we disagree about that, it's a disagreement about how a particular constitutional provision should be understood. It's not a general disagreement about how to interpret the Constitution. It's not a disagreement about originalism versus the living Constitution. Originalism versus the living Constitution is actually an argument that no one needs to have . FOURTEENTH AMENDMENT is one of the most important aspects of our constitution today because of (1) Equal Protection Clause , (2) applicability of the Due Process clause applicable to State governments, and (3) corresponding doctrine of Selective Incorporation . These revolutionized American Constitutional Law. VIDEO : TEXTBOOK PGS. 205-249 The language of the Constitution tends to be ambiguous, employing such phrases as “due process of law,” “equal protection of the law,” and “cruel and unusual punishment” without clearly defining them. This ambiguity presents a problem: How can the Constitution be our supreme law if we don’t know what it means? Also, how can we ever learn the meaning of the Constitution when those who wrote it have long since died? The answer lies in judicial interpretation of the Constitution, which is the main but not exclusive responsibility of the U.S. Supreme Court. As Chief Justice John Marshall wrote in the famous case of Marbury v. Madison, “It is emphatically the province and duty of the judicial department to say what the law is.” Chief Justice Charles Evans Hughes, in the same vein, remarked, “We are under a constitution but the constitution is what the judges say it is.” This ability to be the final arbiter of the meaning of the Constitution has given the Supreme Court tremendous power to affect not only the laws of the nation but its politics and policies as well. This point was vividly illustrated when the Supreme Court decided the outcome of the 2000 election with its ruling in Bush v. Gore and again in 2012 when it upheld the constitutionality of the Affordable Care Act. As the final interpreter of the Constitution, the Supreme Court has the ability to rule on the constitutionality of the actions of the other two branches of government as well as those of the states and other governmental entities. Through judicial elaboration of the meaning of the Constitution, the Court can broaden or limit the powers of the president and Congress. In so doing, the Court breathes life into the Constitution, making it a “living” document that changes as the nation changes, and giving it as much relevance in the twenty-first century as it had when it was written in 1787. The study of constitutional law, then, becomes a study of the development of a nation. In a sense, constitutional law is a political history of the United States. While it is not possible in an introductory text to afford extensive coverage to any kind of law, we will attempt to provide our readers with sufficient background to acquaint them with at least some of the major areas of interest to constitutional law scholars. In this chapter we will examine several facets of constitutional law. First, we will discuss the doctrine of judicial review and its origin and significance. Next, we will analyze several approaches to constitutional interpretation. Finally, we will look at some major constitutional doctrines, such as federalism, separation of powers, and equal protection to provide a better understanding of our constitutional system. JUDICIAL REVIEW is the power of a court to review the actions of other government bodies in order to determine whether or not those actions are consistent with the Constitution. If, in the opinion of a majority of the court, an act is not consistent with the Constitution, the court will declare the act invalid. Judicial review is usually associated with the court’s determination that a law passed by Congress or a state legislature is unconstitutional, but judicial review is much broader than that. It extends to actions taken by the president, administrative agencies, or any other government body. Another overlooked aspect of judicial review is that it often upholds the actions of governmental bodies. Judicial review is not always negative; it sometimes gives

judicial legitimacy to the actions of government officials. Justice Owen Roberts, in United States v. Butler, wrote the following famous passage describing judicial review: The Constitution is the supreme law of the land ordained and established by the people. All legislation must conform to the principles it lays down. When an act of Congress is appropriately challenged in the courts as not conforming to the constitutional mandate the judicial branch of the Government has only one duty––to lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former. Although many constitutional scholars view Justice Roberts’ description of the process as overly simplistic, it does capture the essence of judicial review. Having defined judicial review as a court’s ability to rule on the constitutionality of actions of governmental bodies, we need to understand how the courts acquired this important power. To do so, we must understand the case of Marbury v. Madison, in which the Supreme Court, in effect, gave itself the power of judicial review. MARBURY V. MADISON Constitutional scholar Craig R. Ducat has written, “There is scarcely a casebook on constitutional law that does not begin with Marbury v. Madison.” Ducat’s observation underscores the importance of Marbury, since without the power of judicial review the Supreme Court would be unable to transform the Constitution into a living document. Understanding Marbury is therefore essential to understanding not only judicial review but also our entire constitutional development. We will begin our discussion of this important case with some historical background. Marbury v. Madison really begins with the election of 1800. The two dominant political parties of that era were the Federalists, led by President John Adams and Alexander Hamilton, and the Democratic-Republicans, led by Thomas Jefferson and James Madison. In the election of 1800, the Federalists suffered a tremendous defeat. Jefferson, in an election that was eventually decided by the House of Representatives, defeated Adams for the presidency. At the same time the Jeffersonians, as the Democratic Republicans were called, had also won control of both houses of Congress. The Jeffersonians had dealt the Federalists a defeat from which the latter would never recover. In those days however, a new president was not inaugurated until March 4 of the following year, so Adams remained in office as a “lame duck” president from late 1800, when the election was held, until March 4, 1801, when Jefferson was inaugurated. During the same period, the “lame duck” Congress was still controlled by the Federalists. The Federalists realized that they were on the ropes politically, but they did not intend to take their defeat lying down. Instead, they devised a plan to entrench themselves in the one branch of government they still controlled: the federal judiciary. On February 3, 1801, the Federalist Congress passed a law creating 16 new circuit court judgeships, and a few weeks later it passed another law creating 42 new justice-of-the-peace positions for Washington, DC. President Adams promptly nominated, and the Federalist-controlled Senate confirmed, the individuals chosen to fill the positions. The Jeffersonians were outraged at this blatant attempt by the Federalists to entrench themselves in the judicial branch, but there was nothing they could do about it until they came to power. At this point, the events that led to the Marbury case began to unfold. Because of the hurried manner in which the judgeships were created and in which the judges were nominated and confirmed, the Adams administration was actually still trying to complete the appointment process late on the evening of March 3, 1801. The person responsible for delivering the judicial commissions to the appointees was Adams’s secretary of state, John Marshall. Because Secretary Marshall was too busy to deliver the commissions personally, he asked his brother James to deliver them for him. James was unable to deliver 12 of the commissions, so he merely placed the undelivered commissions (including William Marbury’s) on the secretary of state’s desk. In May of that year however, Jefferson’s secretary of state, James Madison, took office, and the undelivered commissions came into his possession. Because of the blatantly partisan way in which the judgeships had been created and because he believed the positions were unnecessary, President Jefferson ordered Secretary Madison to deliver some but not all of the 12 commissions. The stage was now set for a dramatic confrontation between Jefferson and the Federalist-dominated Supreme Court. William Marbury and three others decided to sue to recover their commissions. In 1789, Congress had passed the Judiciary Act, which established the federal court system for the United States. Section 13 of the act authorized the Supreme Court “to issue writs of mandamus in cases warranted by the principles and usages of law, to any courts appointed or persons holding office under the authority of the

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United States.” A writ of mandamus is a court order directing a government official to perform a nondiscretionary act. Therefore, under § 13 of the Judiciary Act of 1789, Marbury had the right to bring an original action in the Supreme Court against James Madison. Marbury’s suit asked the Supreme Court to order Madison to deliver his commission because Madison had no legal authority to withhold it from him. Because of some retaliatory legislation on the part of the Jeffersonians once they took power, the case was not decided until the 1803 Term of the Court. The Chief Justice of the United States in 1803 was none other than John Marshall. The Marbury case presented Chief Justice Marshall with a number of problems. First, as the person responsible for the failure of Marbury to receive his commission, Marshall probably should have recused (disqualified) himself in the case. Second, Marshall’s own appointment to the Supreme Court was under a cloud. As part of the Federalist “courtpacking” scheme, the previous chief justice, Oliver Ellsworth, had been persuaded to resign so that President Adams could appoint the younger Marshall to be Chief Justice. Third, the highly partisan case threatened the integrity of the Supreme Court itself. If the Court denied the writ, the public might question the validity of all the Federalist appointments to the federal bench. If the Court ruled in favor of Marbury, it would leave itself open to charges that it had based its decision solely on partisan issues. Finally, President Jefferson had made it clear that he would not comply with a writ of mandamus coming from the High Court. He would instead defy a direct order from the Supreme Court, and, given Jefferson’s popularity, the Chief Justice knew that the Court would be unable to do anything about the defiance. Marshall appeared to be in a classic no-win situation, which is why Marbury v. Madison is a masterpiece of judicial decision making. Chief Justice Marshall’s decision revolved around the answers to three questions posed by the Court. The first question was, “Has Marbury a legal right to the commission he demands?” Marshall answered that Marbury was indeed entitled to the commission because the positions had been legally created by Congress and Marbury had been nominated by the president and confirmed by the Senate in accordance with the law. Marbury, the Chief Justice ruled, unquestionably had a legal right to the commission. The second question was, “If Marbury has a legal right to the commission and if that right has been violated, does the law afford him a legal remedy?” Again, Marshall answered affirmatively by indicating that a legal right is useless if it is without a legal remedy. Marshall proceeded to discuss the writ of mandamus and concluded that the delivery of a judicial commission was not a discretionary power of the secretary of state; that is, the secretary had no authority to refuse to perform what is essentially a ministerial or clerical task. Therefore, the writ of mandamus was the appropriate legal remedy in this case. It was with the third question however that Chief Justice Marshall dropped his bombshell. The question was, “If the law affords Marbury a legal remedy, is it a mandamus issuing from the Supreme Court?” (emphasis added). To this, Marshall answered no. The key to Marshall’s negative answer is the phrase “issuing from the Supreme Court.” Marshall, in effect, threw out Marbury’s suit on a technicality. The Supreme Court, according to Marshall, lacked jurisdiction to hear Marbury’s case. But did not § 13 of the Judiciary Act of 1789 specifically authorize the Supreme Court to issue writs of mandamus to persons holding office under the authority of the United States? Yes, Marshall conceded, but § 13 was unconstitutional and therefore invalid. According to the Constitution, the Supreme Court has only two types of jurisdiction: original and appellate. Any case that comes before the Court must do so under either its original or its appellate jurisdiction. But the Constitution limits the Supreme Court’s original jurisdiction to cases involving foreign ambassadors and cases involving states. By enacting § 13, Congress had created, whether intentionally or not, a third category of original jurisdiction; that is, suits involving the writ of mandamus. This, Marshall ruled, Congress could not do. The only way to either increase or reduce the original jurisdiction of the Supreme Court was to amend the Constitution in the manner prescribed in the Constitution itself. To allow Congress to change the Court’s original jurisdiction by ordinary statute (as § 13 was) would defeat the purpose of having a written constitution as fundamental law. Because the law under which Marbury brought his suit was invalid, the Supreme Court had no authority to hear the case, and Marbury’s suit was dismissed. With the decision in Marbury v. Madison, Chief Justice Marshall appropriated for the Supreme Court (and all courts) the power of judicial review. We must remember that there is no specific reference to judicial review in the Constitution. Marshall used a logical reasoning process, first, to deduce that the power to invalidate unconstitutional legislation actually exists, and second, to conclude that the power to decide when and if

legislation conflicts with the Constitution belongs to the judiciary. Marshall accomplished his first goal by arguing that a written constitution must be considered to be superior to ordinary legislative acts; otherwise, having a written constitution would be senseless. What is the point of having a written constitution if its provisions can be altered by ordinary legislation passed by simple majorities? Next, he argued that the Constitution implicitly recognizes that Congress could inadvertently pass a law that conflicts with the Constitution. Article VI declares that the Constitution and the laws of the United States made in pursuance of the Constitution are the supreme law of the land. Marshall argued that laws not made in pursuance of the Constitution were not the supreme law of the land. Someone or some group, then, must determine which laws are and which laws are not made in pursuance of the Constitution. Having established the fact that laws passed in opposition to the Constitution were invalid, Marshall next appropriated the power to determine their invalidity for the judiciary. With a sweep of the pen, Marshall declared, “It is emphatically the province and duty of the judicial department to say what the law is.” Marshall argued that it was not uncommon for cases to arise where two laws conflict, and it was part of the job of the judiciary to resolve such conflicts. Finally, Marshall argued that judges take an oath to uphold the Constitution and that it was their duty, when confronted with a law that clearly violated the Constitution, to declare that law null and void. Chief Justice Marshall accomplished a number of goals with his decision in Marbury. First, he extricated himself from a serious dilemma that he, through his failure to deliver the commissions personally, had created. The Federalist Supreme Court could not be accused of partisan politics because it had not ruled in Marbury’s favor. (Many people incorrectly interpret the decision as a victory for Madison but, in reality, by holding that the Supreme Court lacked jurisdiction in the case, neither side “won” even though William Marbury never received his commission.) In addition, the Court had avoided a potentially dangerous confrontation with President Jefferson. The president could hardly refuse to obey an order the Court had declined to issue; thus, the president had no need to openly defy the Court’s authority. Second, Marshall, in answering the first two questions he posed, scolded the president for refusing to deliver to Marbury that which was legally his. Third, the Court increased its own prestige by showing that it was “above politics.” Fourth, and most importantly, Marshall secured for his Court and future courts the power of judicial review. Because the federal judiciary was heavily dominated by the Federalists, the Jeffersonians were put on notice that laws passed by them in Congress might someday be subjected to Federalist scrutiny. Despite this veiled threat, having once acquired the power of judicial review, the Supreme Court would not use it again to invalidate a congressional statute for another 54 years. JUDICIAL REVIEW AND CONSTITUTIONAL LAW The Supreme Court’s power of judicial review enables it to interpret the meaning of the Constitution and, in so doing, give substance to the Constitution’s ambiguous phrases. But the Supreme Court is not free to roam at will, handing down constitutional decisions like some self-proclaimed prophet interpreting the meaning of the stars. There are real limits to the Court’s use of judicial review, some of which are self-imposed and some of which are political. Our primary concern, however, is in understanding how the Supreme Court has used its power to interpret the Constitution and has thereby shaped what we have called constitutional law. As we have noted, the Supreme Court is not free to issue constitutional pronouncements on its own. It cannot, in other words, issue what are commonly called “advisory opinions.” If the president proposed to take an action of dubious constitutionality and wanted to clear it with the Court first, the justices would simply refuse to do so. That is because the Court will rule on the constitutionality of acts only if there is a real “case or controversy.” If the president proceeded to take the same action, and if his action were later challenged in court by a person with proper standing, the Court could properly hear the case. Other reasons that the Court might refuse to hear certain cases are because they raise “political questions,” because a controversy has become moot, or because the Court feels that the issue is not “ripe” for judicial review. Finally, the power of juridical review is checked by the role that precedents play in constitutional interpretation. Courts seldom write on a “clean slate,” meaning they cannot ignore interpretations of constitutional provisions that were made by earlier courts. It is important to remember that the availability of judicial review does not mean that the justices will always use their power “to say what the Constitution is.” A second important aspect of constitutional law is that it tends to be evolutionary. Recall that in Chapter 1 we defined case law

as law that develops when judges make interpretations of the meaning of constitutions, statutes, or other forms of written law. Case law develops over a long period of time and tends to be an ongoing process. Let us look at the right to counsel as an example. The right to counsel was included in the Bill of Rights because of the British practice of refusing the accused the right to have an attorney in certain cases, even if the accused could afford one. So despised was this practice that Massachusetts declared in 1641 that “Every man that findeth himselfe unfit to plead his owne cause in any Court shall have liberty to imploy any man against whom the Court doth not except, to helpe him.” As a result, throughout most of our constitutional history, the Sixth Amendment’s guarantee of the right to counsel meant only that the accused was entitled to an attorney if he could pay for one. The exception to this practice was capital cases because all states provided counsel to indigent defendants. Beginning in 1932, the Supreme Court began to change the meaning of the right. In the Scottsboro Boys Case (Powell v. Alabama), a number of African-American youths were accused of raping two white women near Scottsboro, Alabama in March 1931. Because of what the Court termed an atmosphere of “great hostility,” the local sheriff had to call in the state militia to protect the defendants. At the trial, the judge appointed the entire Scottsboro bar as the defendants’ counsel, and, to no one’s surprise, all but one of the youths were convicted. The Supreme Court overturned the convictions on the grounds that the defendants had been denied effective counsel. In addition, because of their youth, their illiteracy, and the hostile environment, the defendants had been denied due process of law as a result of their lack of effective counsel. With the Scottsboro Boys Case the Supreme Court began the “special circumstances” rule, which stated that when special circumstances were present (youth, illiteracy, low IQ) the state had an affirmative duty to provide effective counsel for persons accused of serious crimes. For the next ten years, the Supreme Court wrestled with the problem of which “special circumstances” required the state to appoint counsel for indigent defendants in noncapital cases. In 1942, the Court ruled that indigence alone was insufficient grounds for requiring court-appointed counsel. In that case, Betts v. Brady, an indigent defendant named Betts was forced to defend himself and was convicted. The Supreme Court said that Betts was a man of average education and intelligence, capable of understanding the proceedings and protecting his own interests. They allowed Betts’s conviction to stand, ruling that indigence alone did not constitute a “special circumstance.” The next major step in the development of the right to counsel was the Gideon v. Wainwright case. Clarence Earl Gideon was charged with a felony in Florida, and because he was indigent he asked for court-appointed counsel. Under Florida law, a judge was permitted to appoint counsel for indigent defendants only in capital cases, so the trial judge denied Gideon’s request. Gideon proceeded to defend himself but was convicted and sent to prison. Gideon appealed his case to the U.S. Supreme Court in forma pauperis and, in a rare occurrence, the Court agreed to hear his case. The Court ruled 9 to 0 that the Due Process Clause of the Fourteenth Amendment requires states to provide free counsel to indigent defendants in all noncapital felony cases. At his new trial, this time with the assistance of court- appointed counsel, Gideon was found not guilty. A few years later, the Court extended its ruling to include misdemeanor cases in which the possibility of a jail term exists. By its interpretation of the meaning of the Sixth Amendment and due process of law, the Supreme Court changed the meaning of the right to counsel. Instead of merely assuring a defendant who can afford to hire a lawyer the right to have that lawyer with him in court, the state now had an affirmative duty to provide counsel to those who cannot afford to hire their own. Later cases, such as the Escobedo and Miranda decisions, addressed the question of when a person accused of a crime has the right to consult with an attorney, and even today the Supreme Court continues to struggle with the problem of right to counsel. The final aspect of the nature of constitutional law is related to the one just discussed. If constitutional law has an evolutionary character, then it is also true that the resolution of constitutional issues is seldom final. Recall that in Chapter 1 we discussed the sociological theory of law, which holds that law changes as a society changes. As a society’s view of what constitutes fairness or justice changes, those views will slowly be incorporated into its system of law. The previously discussed issue of the right to counsel illustrates this point. Prior to the 1963 Gideon decision, many well-intentioned people saw nothing unfair about requiring an indigent defendant to argue his own case without the assistance of a lawyer. But today, a majority of people would probably agree with Justice Hugo Black, author of the Gideon decision, who wrote that “lawyers in criminal courts are necessities, not luxuries.” Yet, as our society

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continues to change and the makeup of the Supreme Court changes, “settled” issues such as the right to counsel are raised again and again. Although unlikely, it is possible that a future generation will return to the pre-Gideon view of the right to counsel. As unfortunate as that may be, that is a fundamental characteristic of the American legal system. The changing face of constitutional law is apparent in virtually every aspect of the field. In the next section, we will see how the way in which the Supreme Court interprets the Constitution influences its evolution over time. Then, in the following section, we will examine five major areas of constitutional law in order to increase our understanding of this important field. CONSTITUTIONAL INTERPRETATION Constitutional law provokes a tremendous amount of controversy in our political system. This is, in part, because constitutional law is a struggle over which values shall predominate in our society. Judges given stewardship of a constitutional provision––such as the first amendment––whose core is known but whose outer reach and contours are ill-defined, face the never-ending task of discerning the meaning of the provision from one case to the next. There would be little need for judges––and certainly no office for a philosophy of judging––if the boundaries of every constitutional provision were self-evident. They are not . . . [I]t is the... task of the judge in this generation to discern how the framers’ values, defined in the context of the world they knew, apply to the world we know. The world changes in which unchanging values find their applications. Legal battles over gun control, same-sex marriages, abortion, and the death penalty are, in reality, battles over whose sets of values shall govern our law. Everyone who gives law any thought would like to see the law reflect his or her value system as much as possible. Because constitutional law is the supreme law of the land, it follows that the values it embodies are also supreme. The stakes being so high, it is small wonder that so much has been written about the proper way to interpret the Constitution. Constitutional interpretation may be viewed in terms of both who and how. In Chapter 3 we discussed judicial selection, which focused on how a person becomes a Supreme Court justice. Just as important is who the person interpreting the Constitution will be. For example, when President Ronald Reagan nominated Robert Bork to the Supreme Court in 1987, liberals were very concerned about how he would interpret, if confirmed, the right of privacy. Bork’s defeat was due less to who he was as a person than how he would rule as a Supreme Court justice, but both factors were present in the Senate’s decision to reject his nomination. How to properly interpret the Constitution leads us to consider another side of judicial review. Because judicial review permits judges to say what the law is, it has become an object of controversy. Critics of the Supreme Court claim that judicial review permits judges to inject their own values into the Constitution. The Constitution means what a majority of the Supreme Court at a given point in time wants it to mean. These critics assert that judges should not inject their personal values into the Constitution but should merely interpret the intentions of the Founding Fathers. Another school of thought holds that if the Constitution is to solve contemporary legal problems, it must be interpreted in terms of contemporary values. The thinking of the Framers who accepted slavery can hardly dictate race relations in the twenty-first century. In the remainder of this section we will examine several of the leading theories or methods of constitutional interpretation. Each theory has its strengths and weaknesses, which we will try to denote. To a certain extent, each theory reflects the values of the persons who espouse it. For example, conservatives like Robert Bork have been accused of favoring reliance on the original intentions of the Framers because it “can consistently be made to support the conservative position.” Finally, each will have to be evaluated by the reader who should determine for oneself which is the “proper” way to interpret the Constitution. ORIGINAL INTENTION The predicament posed by the theory of original intention (or original intent, as it is sometimes called) can be revealed by a modern controversy: Did the Framers intend flag burning to be protected by the First Amendment? If your answer is “No,” how do you know that? Many of the members of the First Congress who submitted the First Amendment to the states for ratification were also delegates who helped frame the original Constitution. Many were leaders of the American Revolution. Perhaps some were flag burners themselves, although the flag they might have burned was probably the Union Jack, not the Stars and Stripes. If your answer is “Yes,” how do you know that? The First Amendment protects freedom of speech but flag burning is an action, not speech. Testifying before a congressional committee on why flag burning should be banned, legendary Los Angeles Dodger manager Tommy Lasorda said,

“Freedom of speech is when you talk.” Perhaps the Framers intended merely to protect words, not the actions that accompany words. To the Supreme Court this is no theoretical debate. In Texas v. Johnson (The Flag-Burning Case), the justices had to decide an issue that touches the very soul of our constitutional government. That answer, like previous decisions involving abortion, school prayers, and desegregation, sparked a heated, ongoing debate. JUDICIAL RESTRAINT AND GORING OXEN Judicial restraint and its counterpart––judicial activism––are, like beauty, in the eye of the beholder. When constitutional scholars speak of judicial restraint, they generally have in mind two meanings. The first meaning is that judicial restraint requires judges to defer to the elected representatives of the people. In our constitutional system, legislators, not judges, make law. Advocates of judicial restraint, while not denying judicial review, maintain that it should only be exercised in rare cases. The second meaning is that judges should adhere to precedent or stare decisis. Again, advocates of judicial restraint do not contend that precedent should never be overturned but, again, only rarely. Political conservatives argue that a judge should always exercise judicial restraint but in truth judicial restraint is neither conservative nor liberal. Throughout American history, conservative courts have struck down liberal legislation passed by Congress and the states and liberal courts have upheld conservative legislation. As the old saying goes, “Your position on goring oxen depends on whose ox is being gored.” If you favor the law or precedent being challenged, you advocate judicial restraint whether you are a conservative or a liberal. If you wish to see it struck down, you favor judicial activism whether conservative or liberal. It’s whose ox is being gored. Original intention is the name given to the doctrine which asserts that the only proper way to interpret the Constitution is in conformity to the intentions of the Framers. Its supporters claim that the original intentions of the Framers may be ascertained by either the plain language of the Constitution itself or from the debates and writings of the Framers. James Madison, for example, kept copious notes of the debates of the Constitutional Convention. Extensive historical research has uncovered letters, diaries, and contemporary newspaper accounts written about the Convention by actual participants and observers. The Federalist Papers by Madison, Hamilton, and John Jay are yet another valuable source of insight into the thinking of the Founding Fathers. Supporters of original intention argue that once the meaning of a constitutional provision has been determined, judges should merely rule accordingly. For example, if one wishes to determine if capital punishment is “cruel and unusual punishment,” forbidden by the Eighth Amendment, one need only decide the Framers’ position. Because all 13 states permitted capital punishment at the time of the Constitution’s adoption, it is inconceivable that the Framers thought capital punishment was “cruel,” and it was certainly not “unusual.” Proponents of original intention give several reasons for this theory of constitutional interpretation. First, they argue that it just makes common sense to give weight to the intentions of the persons who wrote the Constitution. The Framers could not have intended to forbid capital punishment when it was an acceptable form of punishment at the time. To rule otherwise is simply nonsense. Second, adherence to original intention constrains the abuse of judicial review. Requiring judges to stick to the intent of the Framers limits judicial discretion and prohibits judges from introducing their personal values into the Constitution. Third, reliance on original intention also provides a certain amount of consistency over time. The “true” meaning of the Constitution does not change as the makeup of the Supreme Court changes. A frequent criticism of original intention is that it often fails to provide answers to contemporary legal issues. For example, while capital punishment per se may be constitutional, is death by electrocution “cruel and unusual punishment”? Because death by electrocution was unknown to the Framers, how can we know their position on its use? Supporters of original intention respond that the solution is simple. The Constitution was never intended to address every conceivable manner of punishment. The Constitution does, however, provide for a Congress and state legislatures composed of the people’s representatives to decide contemporary issues. Because the Framers’ views cannot be determined, the collective judgment of elected officials should decide the issue. Judges should prohibit death by electrocution only if there is a clear constitutional ban against it. A variation of original intention is what one author has termed “moderate originalism.” This approach states that interpreters should concern themselves with the general purpose of a constitutional provision rather than its exact purpose. Judges should ascertain the underlying purpose of the “cruel and unusual punishment” clause

and rule accordingly. If the clause was intended to prohibit inhumane punishment, then the real issue is whether electrocution is inhumane. Critics find original intention objectionable for a variety of reasons. First, they maintain that it is impossible to discover original intention. They point out that the records of the Constitutional Convention are incomplete and unofficial. Although James Madison took notes on the various positions of the delegates, estimates are that only about one-tenth of what was said was actually recorded. A second problem surrounds the question of who should be included among the “Framers.” Should original intention be limited to those who attended the Philadelphia Convention, those who signed the Constitution, or both? Should the delegates who ratified the Constitution in the state ratifying conventions also be included? Only six states had complete records of their deliberations while the remainder had either incomplete or no records. Finally, how can we assume that there was a consensus among the Framers, regardless of how they are identified, on the meaning of a constitutional provision? As the debates at the Convention reveal, there was widespread disagreement on what the Constitution meant. For example, despite assurances from Hamilton in The Federalist Papers that a citizen of one state could not sue a state in a federal court, the Supreme Court later ruled just the opposite. This fact led one constitutional scholar to conclude, “So no jurisprudence of original intention is possible, because original intention is undiscoverable.” Critics of original intention also claim that it is too narrow to be the overriding consideration of constitutional interpretation. Society, they argue, changes its attitudes and opinions on subjects such as capital punishment. Are we, they ask, to be bound forever by the opinions of the Framers? Although it is possible to amend the Constitution to reflect the changes in societal values, such an approach is tedious and impractical. Finally, many critics claim that reliance on original intention is merely a smokescreen used by conservatives to implement a conservative agenda now that conservative justices command a majority of the Supreme Court. Is original intention an honest attempt to return to our constitutional roots, or is it a covert attempt to activate a conservative agenda? As noted earlier in this chapter, constitutional issues are seldom final in their resolution, so it should come as no surprise that the extent to which judges should rely on the intentions of the Framers will probably never be conclusive. INTERPRETIVISM Closely related to original intention is the doctrine of interpretivism. This doctrine holds that the persons who wrote and ratified the Constitution selected certain principles they deemed fundamental and incorporated them into a written Constitution. These principles, such as the Bill of Rights, were regarded as so fundamental that they were even to be protected from majority rule. Freedom of speech, being so essential to the maintenance of democratic government, was not to be abridged by laws passed at the whim of a mere majority. Only through the passage of constitutional amendments, which require extraordinary majorities, could these fundamental principles be altered. Interpretivism, then, holds that the task of the judge is to apply new facts to these fixed and binding principles recognized by the Framers. A jurist adopting this approach can disclaim injecting his or her own values into the Constitution. Instead, the values being upheld are those of the Founding Fathers. For example, in his concurring opinion in The Flag-Burning Case, Justice Anthony Kennedy wrote that the invalid Texas flag desecration law had to be “judged against a pure command of the Constitution.” Implicit in this statement is the assertion that Justice Kennedy’s position reflected not his personal views of flag burning but a directive of the Framers themselves. Justice Hugo L. Black was one of the foremost proponents of interpretative theory. Justice Black never accepted substituting the term “freedom of expression” for freedom of speech. Black was critical of the notion that certain actions termed “symbolic speech” were protected by the First Amendment. For Justice Black, wearing black armbands to protest the war in Vietnam was not “speech” within the meaning of the First Amendment. Thus, Black would disagree with Justice Kennedy that the decision to permit flag burning was a “pure command” of the Constitution. On the contrary, because flag burning constitutes action, not speech, Black would probably have held that it is unprotected. At the same time, Black often took the words of the Constitution literally. For example, he interpreted the First Amendment’s command that “Congress shall make no law” abridging freedom of speech to mean that all speech, even obscene speech, was protected. Interpretivism differs slightly from original intention. The advocate of interpretivism realizes that the intent of the Framers cannot always be ascertained. However, the interpretivist does not necessarily defer to legislative bodies if original intention cannot be determined. For example, in deciding whether the Eighth Amendment prohibits

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persons from being electrocuted, proponents of original intent would defer to legislative bodies. The interpretivist would try to determine whether death by electrocution violates the spirit of the provision prohibiting cruel and unusual punishment. In other words, although the interpretivist might agree with the advocate of original intent that capital punishment is constitutional, he or she would not necessarily agree that electrocution as a method of capital punishment is. The interpretivist, consequently, is less willing to relinquish the justices’ right to “say what the law is.” One of the major criticisms of judicial review is that it is inherently undemocratic. The nine justices of the Supreme Court can strike down a law passed by the elected representatives of the people. Interpretivism may be viewed as a form of judicial restraint. As we have seen, it is the Framers’ values, not the justices’ values, that are being respected. As one scholar has noted, “The chief virtue of this view is that it supports judicial review while answering the charge that it is undemocratic.” NON-INTERPRETIVISM espouses the position that the Framers never intended to create a Constitution frozen forever in the eighteenth century. Instead, they intended to write a “living Constitution” which would endure for all time. The most prominent champion of this position was Chief Justice John Marshall, who wrote in McCulloch v. Maryland, “This provision is made in a constitution intended to endure for all ages to come, and, consequently, to be adapted to the various crises of human affairs.” Non-interpretivism calls for the Supreme Court to serve as an ongoing constitutional convention, constantly modifying, revising, and reinterpreting the Constitution to meet the needs of the current generation of Americans. Non-interpretivists claim that their approach is the only one that makes sense. No one, not even the Framers, could have anticipated the changes that have occurred over the past 225 or so years. The Constitution has to be flexible enough to meet the exigencies of modern America. To paraphrase Chief Justice Marshall, as long as the Supreme Court’s decisions are consistent with the spirit of the Constitution, they are constitutional. An example will illustrate the non-interpretivist approach. When the Fourteenth Amendment was added to the Constitution, segregation laws and laws prohibiting interracial marriages were common in the states. Does that fact preclude a modern Court from striking down such laws as violations of equal protection? Of course not, claim the non-interpretivists. The Constitution is full of phrases such as “equal protection,” “due process,” and “liberty,” which are evolutionary, not stagnant, concepts. These concepts must be constantly reassessed to reflect today’s morals. Should the public’s attitudes about interracial marriages and segregation change, the Constitution must be free to change with them. The Supreme Court, in a sense, acts as both the conscience of the nation and the guardian of its constitutional values. Critics of non-interpretivism are less concerned about innovative interpretations of existing constitutional provisions than the practice of pulling constitutional rabbits out of a hat. In Griswold v. Connecticut, for example, the Court struck down a law banning the use of contraceptives by married couples on the basis of the right to privacy. Similarly, in Roe v. Wade the majority based the right to have an abortion on privacy. Although there is an acknowledged common law right to privacy, there is no explicit constitutional reference to privacy. Defenders of the noninterpretivist approach point out that many constitutional doctrines, including executive privilege, federalism, separation of powers, and even judicial review itself, are not specifically mentioned in the Constitution. However, no one would deny that these doctrines are woven into the very fabric of the Constitution. MAJOR CONSTITUTIONAL DOCTRINES The field of constitutional law is so immense that it is virtually impossible to cover it in a single textbook, much less in one chapter of an introductory text. Consequently, we have chosen to focus on five major doctrines of constitutional law–– federalism, separation of powers, due process of law, equal protection, and civil liberties––that we believe will increase your understanding of constitutional law. Each doctrine will be presented separately with an attempt to identify some of the problems it poses and some of the approaches the Supreme Court has adopted in resolving the issues raised by it. FEDERALISM It may come as a surprise to some people that the word “federalism” never appears in the Constitution. That is because the Framers did not deliberately set out to create a federal form of government. The 13 states that comprised the United States each had a viable state government in the summer of 1787. Most of the delegates who met in Philadelphia had one

major concern: to strengthen the ineffective national government without unnecessarily weakening the existing state governments. To achieve this goal, they devised a plan that divided governmental powers between the national government and the states. A typical textbook definition of federalism defines it as a “Constitutional arrangement whereby power is divided by a constitution between a national government and constituent governments, called states in the U.S.” Under our federal system the Constitution assigns some powers, like the power to declare war and to regulate interstate commerce, to the national government. The so-called “police power,” or the power to regulate health, safety, and morals, is one of the powers reserved to the states. Still other powers, like the taxing power, may be exercised by both levels of government. Although it may appear to be a simple task of assigning a power to one or the other level of government, actually defining the boundaries of the national and state powers has been one of the most perplexing problems in our constitutional history. The commerce power of the national government and the police power of the states serve to illustrate the problem. Congress may regulate interstate commerce or commerce among the states. Consequently, any commercial activity involving two or more states comes under congressional authority. If, however, the activity is internal to the state, it constitutes intrastate commerce and falls within the state’s police power. An early approach to federalism, called dual federalism, was based on the premise that governmental and commercial activities could be placed into neat, discrete categories. The major task of the Supreme Court was to decide whether a particular activity belonged to the national government or to the states. To assist it in deciding to which level of government the power to regulate a given activity belonged, the Court devised certain tests it could apply. For example, the “direct–indirect effect test” held that if the activity had a direct effect on interstate commerce it fell within the power of the national government, but if the effect was only indirect the states were free to regulate the activity. Of course, the determination of whether an effect on interstate commerce was direct or indirect was left to the subjective judgment of a majority of justices. An example should clarify this dual federalism approach. In 1916, Congress passed the Child Labor Act, which banned goods manufactured with child labor from interstate commerce. Congress considered passage of this act to be a legitimate use of its commerce power. Although states had their own child labor laws, some states, like North Carolina, permitted children as young as 12 to work full time. In striking down the Child Labor Act, the Supreme Court found that child labor practices had only an indirect effect on interstate commerce. The Supreme Court took similar positions when Congress tried to regulate monopolies and set minimum wages and maximum hours for workers. Even though, for all practical purposes, these decisions have been reversed or superseded, they serve to illustrate the rigid, legalistic approach which dual federalism brought to constitutional law. The modern approach to federalism has been that of cooperative federalism. Unlike dual federalism, which portrays the two levels of government as antagonistic competitors for power, cooperative federalism stresses the need for states to work with the national government to solve the nation’s problems. Cooperative federalism also stresses the interplay of politics in our federal system. Instead of the Court serving as a referee of jurisdictional disputes between the two levels of government, it assumes that the states have the political skills to protect their interests both in and out of Congress. The reasoning behind this approach is that members of Congress represent states and they must be presumed to have the states’ best interests at heart. Cases involving the commerce power may again help to illustrate the cooperative federalism approach. By the late 1960s, the Supreme Court had adopted a broad, expansive view of the commerce power permitting Congress to regulate wages and hours of workers, labor relations, farm production, and even race relations. However, these uses of the commerce power were all aimed at regulating the commercial practices of private companies and individuals. A different question of federalism arose about whether the commerce power could be used to regulate the activities of the states themselves. That is, while Congress may unquestionably require the local McDonald’s to pay its employees a minimum wage, may it require the states to pay their employees the federal minimum wage? The Supreme Court has equivocated on the issue of using the commerce power to regulate the activities of states. Initially, the Court ruled that Congress could require public as well as private hospitals to pay their employees the minimum wage. However, when Congress attempted to extend the provisions of the Fair Labor Standards Act to include other state employees, the Supreme Court declared the attempt unconstitutional. Surprisingly, only nine years later the Court reversed itself

again, ruling that Congress could require the City of San Antonio to pay its transit authority workers the prevailing minimum wage. However, in 1997, the Court appeared to reverse itself again and ruled that the federal government could not require state law enforcement officials to enforce the provisions of the Brady Handgun Violence Prevention Act. Since 1937, the Supreme Court has allowed an expansive role for the national government under the Commerce Clause. During the 1994 to 1995 Term however, the Court again faced a dilemma which Justice Anthony Kennedy described as a case that “requires us to consider our place in the design of the Government and to appreciate the significance of federalism in the whole structure of the Constitution.” Alfonso Lopez, Jr., a senior at a San Antonio high school, was sentenced, under the Gun-Free School Zones Act of 1990, to six months’ imprisonment and two years’ supervised release. The act barred the possession of a firearm on or within 1000 feet of a school or its grounds. He challenged the conviction on the ground that the statute was unconstitutional because Congress had exceeded its authority under the Commerce Clause in enacting the law. The Court conceded that the goal of safe schools was a laudable one but agreed with Lopez. The legislation interfered with the right of states and local authorities to govern education, “a traditional concern of the States,” by regulating an activity that was “in no sense an economic activity that might … substantially affect any sort of interstate commerce.” Lopez is just one in a series of cases in which it appears that the Supreme Court is returning to the era of dual federalism. In United States v. Morrison, the Court struck down the Violence Against Women Act of 1994, in which Congress had relied on its commerce power to make sexual assault a federal offense. Similarly, the Court has resurrected the Eleventh Amendment to curtail Congressional power to allow the use of the federal courts to sue states. The Supreme Court has limited the power of the federal government to compel states to implement federal policies without their permission. More recent issues of federalism have involved two of the most controversial issues of public policy: legalization of marijuana and illegal immigration. In Gonzales v. Raich, the Court held that federal law banning marijuana under the Controlled Substances Act trumps a California law that permits the growing and use of marijuana for medicinal purposes. In the area of immigration the Court invalidated several provisions of an Arizona law that attempted to punish persons who have entered the state illegally. In Arizona v. United States the Court ruled that federal law pre-empts state laws in the area of illegal immigration. Undoubtedly, the Supreme Court will continue to rule on cases that will change state–federal relationships. It seems clear that the debate over federal regulation of state activities is entering a new phase. It is equally clear that as we enter a third century of constitutional development the issue of federalism is not dead. SEPARATION OF POWERS Just as the Framers sought to divide power between the national government and the states, they also wanted to prevent the concentration of power into the hands of one individual, or even one group of individuals, within the national government. The Framers reduced all governmental functions to essentially three: legislative, executive, and judicial. They believed that the very root of tyranny was to allow these three essential governmental functions to be exercised by one person or group. Consequently, they deliberately set out to divide the three functions into three separate and distinct institutions. Congress was to exercise the legislative power while the president and his subordinates would exercise the executive power. Finally, the Supreme Court, with any inferior courts created by Congress, would possess the judicial power of the United States. It is very difficult to discuss separation of powers without mentioning the corresponding doctrine of checks and balances. The Framers believed that one branch of government would invariably seek to encroach upon and to usurp the powers of the others. In fact, given the ambiguous language describing the powers of each branch, they almost guaranteed that there would be such attempts. The Framers anticipated that one branch would resist attempted encroachments of its powers, but they also realized that safeguards were needed to help each branch protect its powers against attacks. As James Madison wrote: But the great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The “necessary constitutional means” of which Madison writes form the basis for the doctrine of checks and balances. The president’s veto is the most common example of checks and balances.

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Ordinarily, we think of the president’s veto as a check on legislation which he considers unwise. While this is certainly a valid and frequent reason for using the veto, the Framers also expected the president to use his veto to strike down any law that encroached upon his prerogatives. For example, in 1973 when President Richard Nixon vetoed the War Powers Act, he did so mainly because he believed the law encroached upon his powers as commander-in-chief. Even though Congress passed the War Powers Act over Nixon’s veto, all of his successors to date have shared his doubts about its constitutionality. The point is, however, that each branch possesses constitutional weapons to defend itself from the other two. It is easy to overemphasize the “separateness” of the doctrine of separation of powers. Similarly, it is easy to overemphasize the adversarial nature of checks and balances. But the Framers did not create three separate institutions operating in their different spheres oblivious to one another. Nor did they create circumstances under which the three branches would be constantly battling in a permanent struggle for power. On the contrary, the Framers created a system of interdependency among the three branches and in doing so created one of the greatest paradoxes of American government. That paradox is this: despite the tendency for the three branches to confront one another, in order for our national government to work, they must cooperate with one another. Laws must be passed by Congress, signed and enforced by the president, and upheld by the federal courts. This need for cooperation is especially true if one political party is in control of Congress and the other party controls the White House. A major source of conflict involving separation of powers is the doctrine of executive privilege : the president’s claim to be able to withhold information from Congress. The term “executive privilege” does not appear in the Constitution but is maintained by some to be grounded in the doctrine of separation of powers. George Washington set the precedent for executive privilege when, in 1792, the House sought information about a failed Indian expedition in the Northwest led by General Arthur St. Clair. After discussing whether he should comply with the request with his Cabinet, President Washington gave the House the papers it requested. Essentially, the issue of executive privilege is over access to information needed by Congress and possessed by the president. Congress claims that the information in the president’s hands is needed for its lawmaking function. There are times when the information Congress seeks is politically embarrassing to the administration and Congress wants it exposed for partisan political reasons. Historically, Congress has not insisted that the president reveal information if public disclosure would harm national security or generally not be in the public interest. The main problem, of course, is who––the president, Congress, or the Court––should decide when the president may withhold information that Congress feels it has a legitimate right to see. The most famous conflict over executive privilege involved the Watergate tapes. A burglary at the headquarters of the National Democratic Party in June 1972 touched off a series of events that led to the resignation of President Nixon. Although President Nixon denied any knowledge of the break-in or subsequent attempt to cover up White House involvement, investigations into the Watergate affair kept getting closer to the Oval Office. When it was discovered that President Nixon had installed a voice activated taping system in his office to record presidential conversations, the crisis intensified. In the summer of 1973, the Senate Watergate Committee began investigating the 1972 presidential campaign. In the summer of 1974, the House Judiciary Committee began hearings on whether the House should impeach the president. Both committees wanted copies of the tapes containing conversations between the president and key Watergate figures. President Nixon, claiming that the release of the tapes would damage the presidency, invoked executive privilege and refused to surrender the tapes. Ultimately, however, it was not Congress but a member of the president’s own executive branch who succeeded in securing release of the tapes. The Watergate special prosecutor, Leon Jaworski, asked federal judge John Sirica to issue a subpoena duces tecum to the president ordering him to produce the tapes as evidence in the criminal prosecution of the Watergate defendants. When Judge Sirica complied, the president challenged the issuance of the subpoena. Jaworski then appealed to the Supreme Court. The Court ruled unanimously 8 to 0 (Justice William Rehnquist did not participate, having served as an assistant attorney general in the Nixon administration) that the president had to release the tapes. The Court recognized the constitutional basis for executive privilege but held that the president’s right to decide when it is invoked is not absolute. The Court found the need to balance the president’s admitted right to protect his confidential conversations with the need of the Watergate defendants to have all

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relevant evidence in their trial. The Court found that absent a compelling national security interest, a president’s claim of executive privilege, standing alone, was insufficient to overcome the defendants’ right to a fair trial. The late 1990s saw a revival of sorts in separation of powers issues, beginning with the passage of the Line Item Veto Act in April 1996. The Act, which became effective on January 1, 1997, allowed the president to veto specific appropriations contained in a bill without affecting the remaining sections. Members of Congress who initially tried to have the Act declared unconstitutional were held by the Supreme Court to lack standing. However, when President Bill Clinton actually used the item veto to cancel part of the Balanced Budget Act of 1997, the Supreme Court agreed to consider the matter. In Clinton v. New York, the Court ruled 6 to 3 that the Act was unconstitutional. In holding that the act violates the Presentment Clause, Justice John Paul Stevens wrote: If the Line Item Veto Act were valid, it would authorize the President to create a different law–– one whose text was not voted on by either House of Congress or presented to the President for signature. Something that might be known as “Public Law 105–33 as modified by the President” may or may not be desirable, but it is surely not a document that may “become a law” pursuant to procedures designed by the Framers of Article I, § 7 of the Constitution. In several cases involving scandals in the Clinton Administration, the Supreme Court ruled that a sitting president is not immune from being sued in a civil suit, that Secret Service agents guarding the president may be required to testify before a federal grand jury about alleged criminal activities, and that an attorney in the Office of the President may invoke neither executive privilege nor the attorney–client relationship in refusing to testify before a grand jury investigating a criminal matter. More recently, a separation of powers conflict between the president and federal courts has centered around the detention of enemy aliens and enemy combatants in the aftermath of the September 11 terrorist attacks. The same dynamics that foster cooperation also foster friction when government is divided along party lines. During the Obama Administration, for example, disagreement arose with the Republican-controlled Senate over the practice of recess appointments. Article II, § 2 states, “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” This provision was given to enable the president to fill sometimes vital executive offices when, as in the early days of the Republic, the Senate was not in session for months at a time. Disagreement has arisen in recent years over the meaning of the term “recess.” Each Congress has two sessions lasting approximately one year each. One meaning of recess would be that period of time between the end of the First Session and the Second Session. This is known as an “intersession” recess. However, Congress takes several long breaks during the year usually around major holidays like Easter, July Fourth, and Christmas. These breaks are known as “intra- session” recesses. To maintain the appearance that the Senate is still “in session” during recesses the Senate has used what are termed pro forma sessions where in reality few, if any, Senators are actually present. So, the question arose whether the president’s power to make recess appointments included making appointments “that happen” during an intra-session recess. Another question arose whether the vacancy must actually occur during the recess itself or simply be vacant when the president makes the appointment. For example, a vacancy that occurs near the end of a session would not be one occurring during the recess but would become one once the session ends. Some members of the Senate argued that President Obama could only make recess appointments during inter-session recesses and only if the vacancy occurred during the recess. President Obama made three appointments to the National Labor Relations Board on January 4, 2012 during one of the Senate’s pro forma recesses. After the NLRB made an adverse ruling against Noel Canning, a Pepsi-Cola distributor, the company challenged the constitutionality of the appointments. In National Labor Relations Board v. Noel Canning, the Supreme Court addressed three questions. First, the Court held that the president’s power to make a recess appointment extends to both intersession and intra-session recesses finding that both history and logic support that position. Second, the justices held that the president may fill vacancies “that happen” before a recess begins, such as near the end of a session, and not just those that happen during an actual recess of the Senate. In other words, if the vacancy exists during a recess of the Senate, the president may fill the vacancy. However, on the third question the Court ruled that the president may not make a recess appointment during a pro forma session unless the session is longer than ten days. In this case President Obama appointed the

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Board members during a three-day pro forma session. Although the Obama Administration argued that the Senate was not really in session when the appointments were made, the Court ruled it must accept that the Senate is in session when it says it is. Consequently, the Court held that the January 4 appointments were invalid. This brief discussion of separation of powers illustrates that the concept, like federalism, is neither archaic nor static. Cases like Watergate serve to remind us that constitutional doctrines are both relevant and dynamic concepts. Future disputes over the powers of the three branches will undoubtedly arise simply because of the nature of our constitutional arrangement of shared powers. That is because, as Madison predicted so long ago, such struggles are inherent in the governance of human beings. DUE PROCESS The U.S. Constitution actually contains two due process of law clauses. The Fifth Amendment reads, “No person shall … be deprived of life, liberty, or property without due process of law.” Due to an early Supreme Court ruling which held that the Bill of Rights restricts only the actions of the national government,79 a second Due Process Clause was included in the Fourteenth Amendment which was adopted shortly after the Civil War. That Amendment reads, “nor shall any State deprive any person of life, liberty, or property without due process of law.” There was widespread belief that another Due Process Clause was needed to protect the newly freed slaves from vindictive actions at the hands of southern state governments. Due process is one of the most elusive and complex concepts in law. In simple terms, it means that before government can take away a person’s life, liberty, or property, certain procedures must be followed. Due process is the individual’s major defense against despotic and arbitrary government. It prevents government interference with the basic rights of its citizens. Due process has real significance only in a system of government where the people are truly sovereign, since it means that not even the government itself is above the law. The government itself must respect certain rights and conform to accepted standards of behavior. It is important to clarify two common misconceptions about due process. Due process does not mean that government may never take away one’s life, liberty, or property. When the state executes a convicted murderer, it takes life; when it drafts a person into the armed forces, it takes liberty; and when it confiscates land to build a new highway, it takes property. All that is required for due process is that the law be properly followed and the “takings” are not arbitrary or capricious. The second misconception is that due process is reserved for citizens. However, the Fifth and Fourteenth Amendments refer to persons, not just citizens. Everyone, including legal and illegal aliens and even corporations, within the jurisdiction of the United States is entitled to due process. This is because the Framers of these two amendments regarded life, liberty, and property as basic human or natural rights that do not depend on citizenship for protection against government abuse. Previously, due process was described as an elusive concept. It is certainly one of the most elastic and controversial in American law. Persons attempting to capture the essence of due process frequently resort to such phrases as “fundamental fairness” or “canons of decency.” Violations of due process are said to “shock the conscience” or “offend a sense of justice.” The major problem with due process is that it is a highly subjective concept: How much process is due? To one person, our legal system provides too many loopholes that allow criminals to elude justice. To another, life, liberty, and property are sacred and every safeguard is essential. As is often the case, where one stands depends on where one sits; due process may have different connotations for a person facing confiscation of his property than for a highway contractor. Due process of law has two interesting dimensions: procedural and substantive. Procedural due process stresses the policies or procedures government must observe when depriving someone of life, liberty, or property. Virtually everyone agrees, for example, that someone should not be imprisoned without first having a trial. But in Anglo- American law we also speak of a “fair trial,” which implies that there is more to a trial than mere adherence to a set of procedures. The phrase “fair trial” also implies some subjective evaluation of whether the judge was impartial and the jury unbiased. The evaluation of the fairness of a judicial proceeding or law is the essence of Substantive due process : in effect, permits judges to decide what is “fundamentally unfair,” “unreasonable,” or “shocking” to the conscience of society. Substantive due process exposes justices to charges of injecting their personal policy preferences into the Due Process Clause. In the early twentieth century, the Supreme Court was accused of imposing its economic views on the nation by striking down laws regulating the

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number of hours bakers could work and minimum wages for hospital workers. Although substantive due process is generally conceded to be a discredited constitutional doctrine, modern courts have been accused of resurrecting substantive due process, especially in the area of the right to counsel. Critics of the Miranda v. Arizona decision contend that it is a prime example of the Court extending the right to counsel far beyond the original intent of the Framers. It is not always easy to keep procedural and substantive due process separate. The Miranda decision outlines a procedure that police must follow when making an arrest, but it also contains a subjective evaluation of the fairness of informing the accused of his or her constitutional rights. In the remainder of this section, we will focus on the constitutional doctrine known as incorporation . Although incorporation has been applied to First Amendment freedoms and other provisions of the Bill of Rights, we will limit our discussion to those provisions concerning the rights of the accused. An understanding of the incorporation process should shed light on the interplay between procedural and substantive due process of law. As noted at the outset of this section, there are two due process clauses in the Constitution. When the Supreme Court ruled that the Bill of Rights applied only to the national government, it meant that only the national government had to observe due process. Because, as we saw in Chapter 3, the vast majority of criminal cases are tried in state, not federal, courts it meant that for most criminal defendants the Bill of Rights might just as well not exist. Theoretically, at least, each state was free to define the meaning of due process for itself, affording or withholding procedural rights as it saw fit. Although state constitutions contained bills of rights with similar protection, due process often varied from state to state. As we have seen, the Fourteenth Amendment was passed in part to ensure that southern states would not oppress the newly freed slaves. Consequently, states were also forbidden to deny persons within their jurisdictions due process of law. The problem, of course, is what is meant by due process of law? Is due process whatever is required of the federal government, or could states continue to define due process independently? Does due process require the states to adopt some, all, or none of the provisions of the Bill of Rights? These questions and others complicate the already confusing issue of due process. Three theories emerged as a result of the debate over which provisions of the Bill of Rights apply to the states. The first theory, known as total incorporation , holds that all the procedural safeguards in the Bill of Rights were made applicable to the states through the Due Process Clause of the Fourteenth Amendment. This process, also known as absorption, maintains that the Fourteenth Amendment’s Due Process Clause, like a sponge, absorbs the Bill of Rights. Due process is merely a shorthand summary of the Bill of Rights. Without the right to counsel, protection against self-incrimination, and the other procedural safeguards, due process has no meaning. Advocates of total incorporation would include Supreme Court decisions that interpret procedural safeguards, but they would limit the definition of due process to the Bill of Rights. A second theory, known as selective incorporation , holds that some, perhaps most, but certainly not all the Bill of Rights are applicable to the states through the Fourteenth Amendment. Selective incorporation holds that the Supreme Court should decide on a case-by-case basis whether a particular provision of the Bill of Rights is essential to due process. For example, the Fifth Amendment requires that a person charged with a federal offense be indicted by a grand jury. Selective incorporationists argue that the Due Process Clause of the Fourteenth Amendment does not require states to use grand jury indictment. In our federal system, states should be free to employ other methods of indictment and, in fact, approximately half the states indict by information, not by grand jury. Over the years, the Supreme Court has favored selective incorporation. By the end of the 1960s, under the late Chief Justice Earl Warren, most of the major provisions of the Bill of Rights had been incorporated. There is still some disagreement over the extent to which the states must follow federal procedural rules. For example, in Duncan v. Louisiana, the Court ruled that due process requires a jury trial where the maximum punishment possible is two years’ imprisonment. Although Justice Abe Fortas agreed that due process required a jury trial, he did not believe that states should have to observe other federal requirements, such as a unanimous verdict. Later, the Supreme Court did, in fact, rule that unanimous verdicts are not essential to due process in all criminal cases. The third theory, which we might label “due process plus,” holds that due process is not limited to the provisions of the Bill of Rights. Using the language of the non-interpretivists, advocates of this position argue that limiting due process to the Bill of Rights is too restrictive and too narrow. Due process evolves as

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society evolves and is not limited to how it was conceived by the eighteenth-century Framers or to how it is interpreted by twenty-first-century Supreme Courts. In this section, we have tried to cover some of the basic ideas behind due process of law. If due process is, in fact, an evolving concept, then it will probably never be fully understood. Another problem is that due process depends heavily on individual notions of fairness and justice. For these reasons, due process will continue to elude a clear definition. We can only hope that this brief exposure to due process will assist the reader in coming to terms with this fascinating concept of law. EQUAL PROTECTION Like the Due Process Clause, the Equal Protection Clause of the Fourteenth Amendment was designed to prevent discrimination against the newly freed slaves. The Fourteenth Amendment reads, “No State shall … deny to any person within its jurisdiction the equal protection of the laws.” The general thrust of the Equal Protection Clause is that government must treat people “similarly situated” alike. This does not mean that government may never classify people or never treat them differently. A state may classify people into those aged 16 years and older for the purpose of issuing driver licenses. Similarly, a state may provide special benefits for farmers, veterans, or lowincome people. Depending on the criteria, these benefits may be extended to some people and denied to others without violating the Equal Protection Clause. If equal protection permits government both to classify and to treat people differently, what then does it mean? The Supreme Court has approached equal protection analysis by weighing two major factors. The first is the nature or basis of the classification. In the past, states have classified people on the basis of race, age, sex, height, and other physical characteristics. States have also classified people according to wealth, IQ or some other test score, occupation, and education. In deciding whether a classification is constitutional or not, the Court determines whether there is a rational basis for the classification and whether the classification has some rational relationship to a legitimate government concern or goal. Suppose, for example, that a college professor decides to categorize everyone in her class according to eye color, those with brown eyes in one group and those with non-brown eyes in the other group. Suppose further that she decrees that those with brown eyes will be allowed to earn extra credit points but those with non-brown eyes may not. The professor has denied the non- brown-eyed students equal protection because her classification scheme is arbitrary and has no basis in logic or reason. Furthermore, there is no rational relationship between eye color and class performance as reflected in grades. Suppose, on the other hand, that the same professor decides to permit students to earn extra credit points based on good class attendance. She again divides the students into two groups: attenders and non-attenders. In the first place, this classification is based on objective criteria; that is, the number of absences a student has. Second, it may be reasonably assumed, though not necessarily proven, that good attendance and class performance are related. Although it is possible that someone with perfect attendance will fail the class, it is still sensible to assume that class attendance will help the performance of most of the students in the class. In conclusion, while a classification based on eye color is irrational and subjective, one based on attendance is objective and reasonable. Over the years, the Supreme Court has developed criteria for determining whether classifications are reasonable. In the process, the Court has created a category containing what it calls suspect classifications. Race and alienage are examples of suspect classes. Any law that classifies on the basis of race or alienage is immediately “suspect” and presumed unconstitutional. The Court decides whether a classification is suspect by first determining whether its members constitute a “discrete and insular minority.” That is, if the group members are readily identifiable, distinct, and separate from the majority of citizens, it may qualify as a suspect class. Second, the Court ascertains whether there has been a history of past discrimination against the group. Finally, the Court looks at the relative political power of the group. A group possessing relatively little ability to affect the political process may qualify for suspect status. These groups may need judicial protection from the majority that groups with political power do not require. Race is a good example of a suspect class because it is difficult to justify the use of racial classifications. We do not mean, of course, that government census takers may not ask a person’s race or record it on a census form. We do mean that race may not generally be a factor in how a person is treated under the law. Racial classification may be used if the state can suggest a compelling reason why it is justified. For example, affirmative action advocates maintain that the state’s interest in

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overcoming past discrimination against blacks is compelling enough to justify favorable treatment of African Americans. Some people view this as “reverse discrimination” and contend that affirmative action programs are unconstitutional. The Court has recognized a second category of classes that are commonly called “near-suspect” classes. Near-suspect classes include gender, illegitimacy, disability, and age. These groups, for one reason or another, fail to meet the criteria necessary for suspect status but still deserve some protection from possible discrimination at the hands of the majority. Women are a good example of a near-suspect class because numerically they constitute a majority of Americans. Yet few would deny that there has been a history of discrimination, especially in terms of employment opportunities, based on gender in the United States. On the other hand, since women received the right to vote in 1920, there has been no serious attempt, as in the case of African Americans, to prevent them from exercising voting rights. Finally, there are classifications based on criteria that the Court considers “non-suspect.” As we have already noted, laws that bestow benefits on farmers, veterans, poor people, college students, and other special interest groups are generally considered to be reasonable and will usually survive judicial review. The benefits available to these groups are open to anyone who is qualified to receive them regardless of race, religion, or gender. Thus far, we have focused entirely on the first major factor of equal protection analysis: the nature of the classification. The second major factor is whether the law or practice being challenged involves a fundamental interest or right. When a state enacts legislation that infringes a fundamental right, the Court considers the nature of the right, the interest of the state, and the hardship to the individual in its analysis. If a constitutional or statutorily created right is involved, the Court is more likely to strike down the law. For example, in Sherbert v. Verner, the Court ruled that a SeventhDay Adventist could not be denied unemployment benefits because her refusal to work on Saturdays (her Sabbath) made her unemployable. The Court found that the denial of benefits placed an unfair burden on her free exercise of religion. A major problem, of course, is determining exactly what is a fundamental right or interest. Consider the following situations: (1) a state law denies aliens the opportunity to become notaries; (2) a county bar association refuses to allow a noncitizen to take the bar exam even though she is qualified in every other respect; and (3) a state law prohibits the certification of noncitizens as public schoolteachers. In each example, the person involved is a noncitizen and the issue is whether a state may deny access to these occupations to noncitizens. The Court must decide whether a person has a fundamental right to pursue a particular occupation. As in the case of suspect classifications, a state may overcome an infringement of a fundamental right by showing it has a compelling interest in enacting the law. In addition, if the state can demonstrate that the law is carefully tailored to minimize the burden on a fundamental right, the statute may be constitutional. In our three examples, the Court found no compelling reason to deny noncitizens the opportunity to be notaries and lawyers but did find cause to deny noncitizens certification as public schoolteachers. The Court held that the citizenship requirement “was rationally related to the State’s interest in furthering the promotion of civic virtues and understanding.” The Court also held that because the law made exceptions for noncitizens who intended to apply for citizenship, it was carefully tailored to serve its purpose without placing an unnecessary burden on noncitizens. We finally come to the interrelationship between classification schemes and fundamental interests. In determining whether the Equal Protection Clause has been violated, the Supreme Court has employed a two-tier approach. If the law involves a suspect class, a fundamental right, or both, the Court applies “strict scrutiny” to the law. In such instances, the Court presumes that the law is unconstitutional and the state bears the heavy burden of overcoming this presumption. As we have seen, that is done by the state showing a compelling reason to justify the law. The second tier is when the Court applies its reasonable basis analysis. If a law involves neither a suspect class nor a fundamental right, the Court merely determines whether there is a reasonable or rational basis for the law. The burden is on the person challenging the law to show that it violates equal protection. Earlier, we referred to the minimum age for receiving a driver license. Because persons under the age of 16 are not a suspect class and because most legislatures do not consider driving a fundamental right, the Court would simply determine whether the state had a reasonable or rational basis for setting the age limit at 16. Because driving a car requires a certain degree of maturity, it is easy to see that the law does not violate equal protection to 16-year-olds no matter how unfair they believe it to be.

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Some constitutional law scholars and Supreme Court justices have advocated a middle-tier approach to equal protection analysis. This would allow judges to employ more than a reasonable basis analysis but less than strict scrutiny in close cases. For example, the Court could use this middletier analysis in cases in which near-suspect classifications are involved. In any case, the degree of scrutiny is a function of the amount of deference the Supreme Court is willing to afford legislative bodies. As our earlier discussion of judicial review indicated, the degree of deference to legislative bodies is critical to understanding the role of the courts in our constitutional system. CIVIL LIBERTIES The field of civil liberties concerns one of the most controversial areas of constitutional law because it involves the fundamental question of the rights of the individual versus the rights of society. Most people agree that order and stability are necessary for personal freedom to exist, and that individuals must sacrifice some freedom for the good of society. However, we do not wish to sacrifice more freedom than is absolutely necessary to achieve the desired level of stability. But how much stability is enough and how much freedom must be sacrificed to achieve it? Unfortunately, there is no easy answer. This is an especially difficult question in a democratic society that simultaneously values individual freedom and majority rule. Nor is the tension between the rights of the individual and the rights of a democratic society easily reconciled. In the American political system, it is the job of the Supreme Court to strike a balance between the two. The times and the circumstances of society will determine the extent of personal liberty. At times we seem to enjoy tremendous freedom and at other times there seems to be a “chilling effect” on the exercise of individual freedom. As a result, civil liberties are in a constant state of fluctuation in which the amount of freedom we enjoy will depend on the willingness of society and the Court to tolerate our exercise of freedom. Civil liberties are not rights conferred upon citizens by government as they are often misperceived to be. John Brigham has written that liberties “are rights held against authorities” that “limit interference with a variety of activities deemed worthy of special protection.” In other words, certain liberties, such as freedom of speech and religion, are considered to be so fundamental that they are protected from majority rule. The field of civil liberties is traditionally divided into First Amendment freedoms, and the rights of the accused. First Amendment freedoms include freedom of religion, speech and assembly, and freedom of the press. Because the rights of the accused, such as the right to counsel, are addressed in other sections of this book, we will limit our discussion here to First Amendment freedoms. We begin with freedom of religion. There are actually two clauses in the First Amendment that pertain to freedom of religion: the Establishment Clause and the Free Exercise Clause. The Establishment Clause reads, “Congress shall make no law respecting an establishment of religion.” One theory of the Establishment Clause is that it was designed to erect a “wall of separation” between church and state. This theory holds that the majority will attempt to use the power of government to promote or advance a particular religion. To prevent that from happening, civil libertarians must be vigilant about any attempt to use state power to promote religion in any manner. In other words, the wall should be kept high. A second theory asserts that erecting a wall of separation results in government hostility toward religion, which was never the intent of the Constitution’s Framers. Instead, the Establishment Clause was designed to ensure that all religions received equal treatment from government. As long as government shows no preference for one religion over others, the Establishment Clause is not violated. Cases involving the Establishment Clause have entailed those in which government financial aid is at issue and those in which some form of religious exercise is challenged. The first category consists of cases in which the government sought to provide financial aid to parochial schools, for example. In the early cases, the Supreme Court was asked to rule on the constitutionality of providing bus transportation, school books, and other forms of assistance to students attending religiously affiliated schools. In some instances the Court allowed such government aid, while in others the aid was denied. The Court formulated the much-criticized Lemon test to resolve issues of financial aid. The Lemon test states that in order to survive judicial scrutiny, the policy (1) must have a secular legislative purpose, (2) may neither advance nor inhibit religion, and (3) must avoid excessive entanglement between church and state. If any one of these three components is not met, the Establishment Clause is violated. The second category of establishment cases includes those in which some form of religious exercise

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involving government is challenged. The prayersin-school controversy that continues to surface in political debate is such an example. Beginning with Engel v. Vitale in 1962, which banned the use of a nondenominational prayer in New York public schools, the Supreme Court has been faced with a multitude of religious exercise cases. The Court has been asked to rule on the posting of the Ten Commandments in public school classrooms, an Alabama law authorizing a period of silence for “silent meditation or prayer,” and prayers at high school commencement ceremonies and football games. To illustrate the complexity of these issues, the Supreme Court held in its 1994 Term that the University of Virginia’s refusal to pay for the publication of a Christian student magazine from student fees violated the students’ freedom of speech. The University had refused to pay for the publication on the grounds that to do so would violate the Establishment Clause. However, the Court ruled 5 to 4 that freedom of speech, not the Establishment Clause, was the critical issue involved. The second great clause of the First Amendment that deals with religion is, of course, the Free Exercise Clause. After admonishing Congress not to establish a religion, the Constitution forbids it to prohibit “the free exercise thereof.” A common thread that runs through the free exercise cases is this fundamental question: Should an individual or group be exempt from some general law or obligation for religious reasons? The Supreme Court confronted this very question in Reynolds v. United States, better known as the Mormon Polygamy Case. George Reynolds argued that because polygamy was a tenet of the Mormon religion, he and other Mormons should be exempt from laws that make multiple marriages a crime. The Supreme Court refused to grant the exemption and drew a distinction between holding a religious belief and acting on that religious belief. Mormons were free to believe in polygamy, but the state may punish actions that violate the norms of society. “Suppose,” Chief Justice Morrison Waite asked, “one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government [could] not interfere to prevent a sacrifice?” In addition to the polygamy issue, religious groups have sought exemptions from general laws in a variety of other cases. Jehovah’s Witnesses have challenged laws that require reciting the Pledge of Allegiance in public schools and that require licenses for religious doorto-door solicitation. In Wisconsin v. Yoder, Amish parents successfully challenged compulsory school attendance beyond the eighth grade for their children. Finally, in Employment Division, Department of Human Resources of Oregon v. Smith, the Supreme Court ruled against two Native Americans who claimed that their use of peyote was for religious purposes. As in other areas of civil liberties, the Supreme Court fluctuates on its willingness to protect free exercise claims. Perhaps nothing in recent years has caused more controversy in the free exercise of religion than the debate over government placing “burdens” on the free exercise of religion. In 1993 Congress passed the Religious Freedom Restoration Act (RFRA) in reaction to a Supreme Court decision, Employment Division, Department of Human Resources of Oregon v. Smith. The decision reversed a previous Supreme Court interpretation that required government to have a “compelling reason” for placing a burden on the free exercise of religion. The Act made it clear that Congress wanted the compelling reason standard to be reinstated when laws placed a burden on religious free exercise. Many states followed by passing their own versions of the Religious Freedom Restoration Act. Problems arose when critics of the laws argued that they were being used to encourage discrimination against homosexuals and other gender minorities. For example, Indiana’s RFRA had to be amended when critics alleged that it “could be used by business owners to deny services to gays and lesbians for religious reasons.” Pressure came from businesses and groups, including the NCAA, which threatened to boycott events scheduled for Indianapolis because of the law. In April 2015 the Indiana state legislature amended the law to make clear that its purpose was not to endorse any kind of discrimination against minorities. Indiana’s experience demonstrates that the battle over religious freedom and minority rights is far from over. Using religious freedom to justify florists, photographers, caterers and even health clubs refusing to serve lesbian, gay, bisexual and transgender (LGBT) customers has not been the only problem. In mid-2015 in Kentucky, a county clerk achieved notoriety when, in the aftermath of the Supreme Court decision legalizing same-sex marriages, she refused to issue marriage licenses with her signature. After being jailed and threatened with additional contempt proceedings, the clerk relented. However, the case illustrates the belief by some that religious beliefs should be able to trump the rule of law. Freedom of speech is the second great area of civil liberties protected by the First Amendment. Although freedom of speech can be defended on

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the need to protect the dignity of all persons, it is absolutely essential for a democratic society. Justice Oliver Wendell Holmes, Jr. said that free speech in a democratic society was essential to the “marketplace of ideas.” Freedom of speech, like other liberties, requires the Supreme Court to balance the rights of the speaker against the rights of society. For our purposes, we will examine the following areas: pure speech, symbolic speech, and speech plus action. Pure speech is the use of language alone to communicate one’s ideas. Pure speech becomes a problem when the speaker urges his or her audience to do something that is illegal. In one sense, the person responding to the speech is responsible for his or her response. For example, if a person is urged to participate in a lynching, each member of the mob is guilty of the crime. On the other hand, the person who exhorts others to illegal actions is equally guilty in the eyes of many people. In an early free-speech case, the Supreme Court formulated the “clear and present danger test” to help determine when government may punish speech. The clear and present danger test held that if a person’s speech presented a clear and present danger of bringing about an evil which the government had a right to prevent, then the speaker could be punished. Another area in which pure speech has raised problems is in the category of “fighting words” or “words likely to cause an average addressee to fight.” Fighting words would include but are not limited to obscene words that would provoke the average person to engage in a confrontation. In general, the Supreme Court is willing to permit government to impose these and other reasonable “time, place, and manner” restrictions on even pure speech. A second and even more controversial area of free speech is symbolic speech. Symbolic speech involves the nonverbal conveyance of an idea or opinion, such as burning an American flag. Although not the first case to raise the issue of symbolic speech, Tinker v. Des Moines Independent School District is one of the best known. High school students opposed to the war in Vietnam wore black armbands to protest that war in violation of a school policy. The Supreme Court upheld the students’ right to engage in non-disruptive protest under the First Amendment. Burning of the American flag has aroused debate over the concept of symbolic speech. The Supreme Court ruled in Texas v. Johnson that states could not punish flag burning. The Court reaffirmed its commitment to this form of freedom of expression by declaring the Flag Protection Act of 1989 (passed in response to Johnson) unconstitutional in United States v. Eichman. The final type of free-speech constitutional issue is speech plus action, which combines pure speech and symbolic speech. If a person makes a speech while burning a draft card, is the speech protected even if the draft card burning is not? In other words, is it possible to separate a forbidden act (draft card burning) from protected speech? In Street v. New York, the Supreme Court overturned Sidney Street’s conviction for flag burning on the grounds that it was impossible for the jury to separate the action from his accompanying speech. However, the year before Street in United States v. O’Brien, the Supreme Court held that David Paul O’Brien could be punished for burning his draft card to protest the war in Vietnam, even though a speech in opposition to the war was protected. In any event, it is difficult for some people to understand why burning a draft card may be punished but burning a flag may not be. Some of the most intriguing issues of freedom of expression are those developing in the jurisprudence dealing with the nexus of the First Amendment and the Internet. Congress passed a 103-page law, the Telecommunications Act of 1996, that included the provisions commonly known as the Communications Decency Act (CDA) of 1996. In part, the law provided that anyone sending communications that were “obscene or indecent” or “patently offensive as measured by community standards” to anyone under the age of 18 could be imprisoned for two years as well as fined. Consortiums of nearly 50 organizations––private and commercial––filed suit challenging the constitutionality of the statute. In the case that one commentator referred to as “Internet 101 for Justices,” but officially known as Reno v. ACLU, Justice John Paul Stevens lauded the congressional goal of protecting minors from harmful influences in a medium that was used by approximately 40 million people at the time of the trial. He examined the nature of the Internet––that no single organization controls the Internet and that it is incredibly diverse in content. Furthermore, while no one program can block sexually explicit sites, some systems assist parents in controlling content that may come into the home; almost all such sites carry warnings and some providers use various screening devices to determine the age of the recipients. The Internet is less invasive than television or radio, and users must initiate the contact and rarely reach a site accidentally. After describing the Internet, Stevens turned to the crux of the case: The vagueness of the CDA is a matter of special concern

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for two reasons. First the CDA is a content-based regulation of speech. The vagueness of such a regulation raises special First Amendment concerns because of its obvious chilling effect on free speech. Second, the CDA is a criminal statute. In addition to the opprobrium and stigma of a criminal conviction, the CDA threatens violators with penalties including up to two years in prison for each act of violation. The severity of criminal sanctions may well cause speakers to remain silent rather than communicate even arguably unlawful words, ideas, and images. As a practical matter, this increased deterrent effect, coupled with the “risk of discriminatory enforcement” of vague regulations, poses greater First Amendment concerns than those implicated by the civil regulations [citations omitted]. In addition, the CDA went too far in suppressing the speech that adults have a constitutional right to send and receive, especially because the transmission of child pornography and obscenity, in whatever medium, is already a criminal act under other statutes. Stevens closed with the statement, As a matter of constitutional tradition, in the absence of evidence to the contrary, we presume that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it. The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship. The Supreme Court continues to emphasize that the First Amendment guards only against encroachment by the government and does not provide a shield against merely private conduct. For example, a private company “does not have a right under the First Amendment to the United States Constitution … to send unsolicited e-mail advertisements over the Internet,” and Internet service providers may block such attempts. Freedom of the press is the last great area of civil liberties to be discussed in this section. Freedom of the press is less important to us as individuals than freedom of religion or speech, which are personal liberties. Freedom of the press involves the rights of someone else; that is, the press. In a sense, however, freedom of the press is about a citizen’s right to receive information. Just as a speaker has a right to air his or her views, an individual has a right to hear the views of others. This makes a free press vital to a democratic society. Problems with freedom of the press fall into three general categories: prior restraint, libel, and obscenity. Under a system of prior restraint , the government requires the press to submit to a preclearance, a procedure whereby officials can check a publication for problems and eliminate them before the publication can reach its audience. For example, articles for high school newspapers are frequently submitted to the paper’s faculty sponsor for such preclearance, and the Supreme Court approved the practice in Hazelwood School District v. Kuhlmeier. Issues involving questions of national security is another area where prior restraint is sometimes justified. Libel is the punishment of an author or publisher after something has been printed and distributed. Libel is a form of defamation in which the person libeled seeks damages from the author or publisher for inflicting the alleged harm, usually to a person’s reputation. While private persons may avail themselves of the protection from libel, the Supreme Court has held that a higher standard of malice exists for public officials and those who deliberately seek to become public figures, such as movie stars. Finally, in Roth v. United States, the Supreme Court ruled that “implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.” As a result, it became necessary for the Court to fashion some sort of test to determine which materials were obscene and unprotected and which were protected. Not only the printed word but also motion pictures, radio broadcasts, virtual child pornography, and even nude dancing have sought the protection of the First Amendment. To the consternation of the justices, finding an acceptable definition of obscenity and the scope of freedom of expression have proven elusive. Civil liberties are important because they reinforce the rule of law in society. There are some activities that are so vital to democratic society that even the government must respect them. Civil liberties are also important because they provide the freedom necessary for individuals to express themselves without government interference. Democracy strives to ensure that each person can reach his or her full potential. Civil liberties are the guarantees the Constitution provides to meet this ideal. CONCLUSION This chapter has tried to introduce the field of constitutional law within the limits of an introductory text. We have examined judicial review, introduced several approaches to constitutional interpretation, and analyzed five major constitutional doctrines. Yet we have only covered the tip of the iceberg. Constitutional law is a vast and fascinating area of law because it

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deals with ideals, hopes, and rights for which some people are willing to die. In a real sense, our Constitution says a lot about who we are as a people and as a nation. The Constitution is the foundation of American law, since in the final analysis all our law must conform to its principles. 14 TH AMENDMENT Section 1 may be most important to individual rights, it enforces equal protection (Equal Protection Clause). The state cannot infringe on individual rights before due process of law (restatement of 5 th amendment’s legal process, which was talking about the federal government) >> Due Process Clause of 14 th Amendment. Ratified in 1868, after end of civil war. (The 13 th amendment abolishes slavery, but the South still had black codes repressing rights of blacks, so Congress felt need for 14 th amendment). 1896, In Plessy v. Ferguson, it was unconstitutional for black people to travel in separate train car from white. But Supreme Court said as long as it was “separate but equal”, it did not violate the 14 th Amendment. In 1954 Brown v. Board of Education, argued that separate could not be equal. The Supreme Court ruled in favor of schools being desegregated, which was a function (not official) overruling of Plessy’s separate but equal. In 1960s Civil Rights Movement, 14 th amendment is cited often (MLK Letter From Birmingham Jail and Women’s Rights Movement in sexual discrimination in workplace, pro-life groups citing it, are quotas in higher education legal or not). McCullough v. Maryland (1819): John James brought suit against James McCullough and the Bank of the United States. James demanded that the federal bank pay the state tax as well as a fine of $2,500 for having issued unauthorized notes; bank had been doing business without paying state tax. The case was heard on May 8th, 1818, in the county court of Baltimore County. Defense argued that the Maryland law is unconstitutional and no state under the Constitution may lay a tax on a federal agency. Maryland's a sovereign state. The right to raise revenues by laying taxes is founded in her sovereignty and guaranteed by the Constitution. Under the Constitution, only exports, imports, and tonnage are exempt from state taxation. The right to tax without limit or control is essentially a power to destroy. The power to destroy a federal agency clearly isn't granted by the Constitution to any state. That works both ways. If the right to tax implies the right to destroy, the federal government shouldn’t have it either. Constitution’s Article 6: Federal law supersedes state law, they’re not equal under the constitution. That only applies to matters of the constitution, which is silent on the matter of chartering banks. Congress should not decide on the constitutionality of federal banks, the Supreme Court should. You can justify almost anything under the excuse of “Implied Powers” (it being necessary for U.S. to have federal bank, Congress operating Roosevelt Copper mines). This reasoning can’t go unchecked, federal government will operate anything and everything. State rights will end, which are bulwak of individual freedoms. Half the states in the union had heavily taxed the federal government. Virginia filed motion to repeal the federal bank: Alien and Sedition Acts. There's not a word in the Constitution that would suggest the idea of a bank to even the most fertile imagination. Yet they create a bank. And that's still not enough. The experiment is pushed further and further and further still. The sovereignty of our state is assailed with a threat to strip from it its most vital and essential power, the right of taxation. Congress, under the Constitution, may provide for and support a Navy. Would it make any sense to say just because the word steamboat is not contained in the Constitution, that therefore the use of steamboats by the nation's Navy is unconstitutional? Your honor, the statute book of the United States is filled with powers derived by implication. Congress has the power to establish a Postal Service. Would anyone here question that it entails out of necessity the power to establish post offices and post roads and even the power to punish the offensive robbing the mails? Lighthouses, beacons, buoys, and public tears are all established under the general power to regulate commerce. The power to lay and collect taxes will not execute itself. Congress must devise in all detail, all the means of collection. A federal bank is such a means. What justification, I ask you. Is there anything that it is any less useful and any less proper than

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lighthouses, beacons, post roads and post offices. In February 25, 1819, the motion to repeal the federal bank in Congress was defeated. In his opinion in McCulloch v. Maryland, John Marshall established the reality and vitality of the federal government . At Valley Forge, the American army almost perished because the states would not honor their commitments. The Supreme Court had now made certain that the Union and its central authority would never again be in such crisis, that the whole would never again be endangered by a lack of cooperation from its parts. John Marshall, writing for the Supreme Court in McCulloch v. Maryland, undertook to produce a justification for the supremacy of the federal government in the powers granted by the Constitution , persuasive enough to last through the coming generations.

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