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Marbury v. Madison, 1803 Judicial Review; FedearlismBackground Thomas Jefferson, a member of the Republican Party, won the election of 1800. The outgoing President, John Adams, proceeded to rapidly appoint 58 members of his own party to fill government posts created by Congress.

It was the responsibility of the Secretary of State, John Marshall, to "deliver the commissions," finish the paperwork, and give it to each of the newly appointed judges. Although Marshall signed and sealed all of the commissions, he failed to deliver 17 of them to the respective appointees. Marshall assumed that his successor would finish the job, but when Jefferson became President, he told his new Secretary of State, James Madison, not to deliver some of the commissions, because he did not want members of the opposing political party to take office. Those individuals couldn't take office until they actually had their commissions in hand.

William Marbury, whom Adams had appointed as justice of the peace of the District of Columbia, was one of these last-minute appointees who did not receive his commission. Marbury sued James Madison and asked the Supreme Court of the United States to issue a writ of mandamus, a court order that requires an official to perform or refrain from performing a certain duty. In this case, the writ would have ordered Madison to deliver the commission.

Marbury argued that he was entitled to his commission and that the Judiciary Act of 1789 gave the Supreme Court of the United States original jurisdiction to issue a writ of mandamus. Madison disagreed. When the case came before the Court, John Marshall — the person who had failed to deliver the commission in the first place — was the new Chief Justice. If this situation were to arise today, Marshall would likely disqualify himself because of a conflict of interest.

QUESTIONS TO CONSIDER

1. Who was Marshall likely to side with, Marbury or Madison? Why?

2. If the Court decided that Marbury was entitled to the commission, how could it be sure that the executive branch would deliver it? Does the Court have the power to force compliance? What would happen if the Court issued the writ, but the executive branch refused to comply?

3. According to Article 3, Section 2 of the Constitution, in what types of cases does the Supreme Court of the United States have original jurisdiction? Does the Congress have the authority to alter the Court's jurisdiction?

The Decision The Court unanimously decided not to require Madison to deliver the commission to Marbury. Chief Justice Marshall understood the danger that this case posed to the power of the Supreme Court. Because Madison was President Jefferson’s secretary of state and Jefferson was head of the Democratic Party while Chief Justice Marshall and Marbury were Federalists, President Jefferson was almost certain to direct Madison to refuse to deliver the commission to Marbury. If the Court required Madison to deliver the commission and Madison refused, the Court had no power to force him to comply, and, therefore the Court would look weak. If the Court did not act, it would look like the justices made their decision out of the fear that Madison would not obey their decision.

The justices struck a middle ground between these alternatives in their opinion, written by Chief Justice Marshall. The Court ruled that Marbury was entitled to his commission, but that according to the Constitution, the Court did not have the authority to require Madison to deliver the commission to Marbury in this case. They found that the Judiciary Act of 1789 conflicted with the Constitution because it gave the Supreme Court more authority than it was given under the Constitution. The dispute centered around the difference between the Supreme Court’s original jurisdiction and its appellate jurisdiction. If the Court has original jurisdiction over a case, it means that the case can go directly to the AP Gov: Landmark Supreme Court Cases 1

Supreme Court and the justices are the first ones to decide the case. If the Court has appellate jurisdiction, however, the case must first be argued and decided by judges in the lower courts. Only then can it be appealed to the Supreme Court, where the justices decide whether the rulings of the lower courts were correct. Marbury brought his lawsuit under the Court’s original jurisdiction, but the justices ruled that it would be an improper exercise of the Court’s original jurisdiction to issue the writ of mandamus in this case.

The Judiciary Act of 1789 authorized the Supreme Court to “issue writs of mandamus … to persons holding office under the authority of the United States.” A writ of mandamus is a command by a superior court to a public official or lower court to perform a special duty. The Court said this law attempted to give the Court the authority to issue a writ of mandamus, an exercise of its original jurisdiction, to Secretary of State Madison. However, Article III, section 2, clause 2 of the Constitution, as the Court read it, authorizes the Supreme Court to exercise original jurisdiction only in cases involving “ambassadors, other public ministers and consuls, and those [cases] in which a state shall be a party. In all other cases, the Supreme Court shall have appellate jurisdiction.” The dispute between Marbury and Madison did not involve ambassadors, public ministers, consuls, or states. Therefore, according to the Constitution, the Supreme Court did not have the authority to exercise its original jurisdiction in this case. Thus the Judiciary Act of 1789 and the Constitution were in conflict with each other.

Declaring the Constitution “superior, paramount law,” the Supreme Court ruled that when ordinary laws conflict with the Constitution, they must be struck down. Furthermore, it is the job of judges, including the justices of the Supreme Court, to interpret laws and determine when they conflict with the Constitution. According to the Court, the Constitution gives the judicial branch the power to strike down laws passed by Congress, the legislative branch. This is the principle of judicial review. Thus, it has been recognized since this decision that it is “emphatically the province and duty of the judicial department to say what the law is.”

Through this decision, Chief Justice Marshall established the judicial branch as an equal partner with the executive and legislative branches within the developing system of government. By refusing to require Madison and Jefferson to deliver the commission to Marbury, he did not give Madison the opportunity to disobey the Court, making it look weak. And, by declaring the Court’s power through the principle of judicial review, he made it clear that the justices did not make their decision out of fear. Instead, he announced that the Constitution is the supreme law of the land, and established the Supreme Court as the final authority for interpreting it.

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McCulloch v. Maryland, 1819 State Taxes, National Supremacy

Background In 1791, the first Bank of the United States was established to serve as a central bank for the country. It was a place for storing government funds, collecting taxes, and issuing sound currency. At the time it was created, the government was in its infancy and there was a great deal of debate over exactly how much power the national government should have. Some people, such as Alexander Hamilton, argued for the supremacy of the national government and a loose interpretation of its powers, which would include the ability to establish a bank. Others, such as Thomas Jefferson, advocated states' rights, limited government, and a stricter interpretation of the national government's powers under the Constitution and, therefore, no bank. While Jefferson was President, the Bank's charter was not renewed. After the War of 1812, President James Madison determined that the country could utilize the services of a national bank to help fulfill its powers listed in Article I, Section 8, Clause 18 of the Constitution. In response to his suggestion, Congress proposed a Second Bank of the United States in 1816.

President Madison approved the charter and branches were established throughout the United States. Many states opposed opening branches of this bank within their boundaries for several reasons. First, the Bank of the United States competed with their own banks. Second, the states found many of the managers of the Bank of the United States to be corrupt. Third, the states felt that the federal government was exerting too much power over them by attempting to curtail the state practice of issuing more paper money than they were able to redeem on demand.

One state opposed to the Bank of the United States was Maryland. In an attempt to drive the Baltimore branch of the Bank of the United States out of business, the Maryland State Legislature required that all banks chartered outside of Maryland pay an annual tax of $15,000. There was a $500 penalty for each violation of this statute. James McCulloch, cashier of the Baltimore branch of the Bank of the United States, refused to pay the tax.

The State of Maryland took him to court, arguing that because Maryland was a sovereign state, it had the authority to tax businesses within its border, and that because the Bank of the United States was one such business, it had to pay the tax. Luther Martin, one of the attorneys for Maryland, reasoned that because the federal government had the authority to regulate state banks, Maryland could do the same to federal banks. Besides, he argued, the Constitution does not give Congress the power to establish a Bank of the United States. McCulloch was convicted by a Maryland court of violating the tax statute and was fined $2,500.

McCulloch appealed the decision to the Maryland Court of Appeals. His attorneys, who included Daniel Webster, asserted that the establishment of a national bank was a "necessary and proper" function of the Congress. Webster stated that many powers of the government are implied rather than specifically stated in the Constitution. Furthermore, he argued, Maryland did not have the authority to levy the tax, because doing so interfered with the workings of the federal government.

After the Maryland Court of Appeals upheld the original decision against McCulloch, he appealed again. The case was heard by the Supreme Court of the United States, then headed by Chief Justice John Marshall.


1. What are the advantages for the federal government of establishing a national bank? Read through Article I, Section 8, Clause 18 of the U.S. Constitution to determine which functions of Congress might be helped by such a bank.

2. Why would states feel threatened by a national bank?

3. In your opinion, does the United States government have the authority to establish a national bank? Provide justification for your answer. You may want to review Article I, Section 8, Clause 18 of the Constitution to see


what powers it specifically gives Congress.

4. If the United States does have authority to establish a bank, does Maryland have the authority to tax that bank? Why or why not?

5. Why do you think the Supreme Court of the United States agreed to hear this case? What larger principles were at stake?

The Decision In an opinion written by Chief Justice Marshall, the Supreme Court unanimously ruled in favor of McCulloch and against the state of Maryland. The Court addressed two questions: 1) whether Congress had the authority under the Constitution to commission a national bank, and 2) if so, whether the state of Maryland had the authority to tax a branch of the national bank operating within its borders.

The justices first addressed the issue of whether the Constitution gave Congress the power to establish a national bank. They acknowledged that it was not within the enumerated powers of Congress, authority explicitly given to Congress in the Constitution, to establish a national bank. He also noted that there is nothing in the Constitution restricting the powers of Congress to those specifically enumerated. Rather, only the “great outlines” of the powers of the three branches are specified. Instead of listing every power of Congress, the Constitution gives Congress the authority to make “all laws which shall be necessary and proper” for exercising the powers that are specifically enumerated. This means that Congress has the authority to pass any law that is “necessary and proper” to exercise its power as specified in the Constitution, even if the Constitution does not explicitly give Congress the authority to pass that specific law or to regulate that specific matter. This is the principle of unenumerated powers. The justices noted that the Constitution expressly gives Congress the powers to “lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies and navies.” Because a national bank would be “necessary and proper” to allow Congress to exercise these enumerated powers, the Court concluded that the Constitution gave Congress the authority to establish one.

The second issue the Court considered is whether the state of Maryland had the authority to tax a branch of the national bank operating within its borders. The Court determined that it did not. In their decision, the justices declared that “the constitution and the laws made in pursuance thereof are supreme; that they control the constitution and laws of the respective states, and cannot be controlled by them.” In other words, if the United States Congress passed a law within its authority under the Constitution, a state legislature could not pass a law to interfere with that action. “The power to tax is the power to destroy,” they decided. Allowing a state to tax a branch of the national bank created by Congress would allow that state to interfere with the exercise of Congress’s constitutional powers. Thus because “states have no power, by taxation or otherwise, to retard, impede, burden or in any manner control” the operation of constitutional laws passed by Congress, Maryland could not be allowed to tax a branch of the national bank, even though that branch was operating within its borders. The law passed by the Maryland state legislature imposing a tax on the Bank of the United States “is unconstitutional and void.”


Gibbons v. Ogden, 1824 States Rights, Commerce Clause

Background The case of Gibbons v. Ogden (1824), decided 35 years after the ratification of the Constitution, was a key turning point for the expansion of federal power to address national problems.

Under the Articles of Confederation, the national government was virtually powerless to enact policies to rationalize the actions of states. One problem that emerged during this time was the way in which state policies tended to restrict commerce within and beyond their borders, making market exchanges inefficient and costly. In the Constitution, the framers included the Commerce Clause in Article I, Section 8 to address this issue. The Commerce Clause states that Congress has the power "[t]o regulate Commerce with foreign Nations, and among the several States. . . ." The hope was that giving Congress such a power would help to unify commerce policies thereby making market exchanges more efficient and less costly.

Though the clause clearly gave Congress some power over commerce, it was unclear just how much. It was also unclear what constituted commerce. The Gibbons case clarified some of these issues under a decision issued by Chief Justice John Marshall, who had nationalist intentions.

In 1808, Robert Fulton and Robert Livingston acquired a monopoly from the New York state legislature to operate steamboats on the state's waters. This monopoly extended to interstate waterways, those areas of water that stretch between states. Aaron Ogden held a Fulton-Livingston license to operate steamboats under this monopoly. However, Thomas Gibbons held a federal coasting license, granted under a 1793 Act of Congress, and operated steamboats between New Jersey and New York that competed with Ogden's.

Ogden filed a complaint in the Court of Chancery of New York asking the court to restrain Gibbons from operating his boats. Ogden's lawyer contended that states often passed laws on issues regarding interstate matters and that states should have fully concurrent power with Congress on matters concerning interstate commerce. The monopoly, therefore, should be upheld.

Gibbons' lawyer, Daniel Webster, argued that Congress had exclusive national power over interstate commerce according to Article I, Section 8 of the Constitution and that to argue otherwise would result in confusing and contradictory local regulatory policies.

The Court of Chancery of New York found in favor of Ogden and issued an injunction to restrict Gibbons from operating his boats. Gibbons appealed the case to the Court of Errors of New York, which affirmed the decision. Gibbons appealed the case to the Supreme Court of the United States.


1. Under what authority, state or federal, did Ogden operate his steamboats? Gibbons?

2. What argument did Ogden use to support his license to operate steamboats? Gibbons?

3. The background information states that Gibbons relied on the Commerce Clause of Article I, Section 8 of the U.S. Constitution to justify his case. If

Ogden wanted to use the U.S. Constitution to back up his case, what section or amendment might he use?


4. The Commerce Clause was meant to clarify who had authority over interstate commerce; however, like most of the U.S. Constitution, the clause is stated in general terms that leaves open the possibility for interpretation. For instance, in this case there was a question about whether the transport of people constituted commerce. Try to think of another circumstance where the application of this clause would be unclear.

5. This case appears to be a local dispute between two businessmen. However, the decision in this case is one of the most important in constitutional history. Please explain.

The Decision In a unanimous decision, the Supreme Court ruled in favor of Gibbons. The justices agreed that the Commerce Clause gave Congress the power to regulate the operation of steamboats between New York and New Jersey. Therefore, the license issued to Gibbons by Congress to operate a coast ferry service superseded the monopoly license to operate a ferry service issued to Ogden by the state of New York. The decision centered on the Court’s interpretation of the Commerce Clause, found in Article I, Section 8 of the Constitution, which gives Congress “power to regulate commerce … among the several states.” The first issue raised in this case was the definition of the word “commerce.” The second issue was the meaning of the phrase “among the several states.” Writing the opinion for the Court, Chief Justice Marshall interpreted the meaning of the Commerce Clause to give Congress broad power over commercial activity and reduced that of the states.

Chief Justice Marshall first addressed the controversy over the meaning of the word “commerce” as used in the Commerce Clause. Rather than limit the interpretation of “commerce” to give Congress power to regulate only “buying and selling” of goods, the Chief Justice adopted a broader definition. According to this definition, “commerce” refers not only to the buying and selling of goods, but also to “commercial intercourse,” including navigation. The Chief Justice justified this broad interpretation by examining the original intention of the framers of the Constitution. He noted that one of the “immediate causes” leading to the adoption of the Constitution was to allow the federal government to regulate commerce in order to avoid the “embarrassing and destructive consequences” of leaving such regulation up to the “legislation of so many different States.” Furthermore, “[a]ll America understands … the word ‘commerce’ to [include] navigation. It was so understood … when the Constitution was framed.” Thus, he concluded, it was consistent with the intent of the framers to interpret the Commerce Clause to give Congress broad power over the regulation of commercial activity, including the operation of steamboats between New York and New Jersey.

The Chief Justice then considered the meaning of the phrase “among the several States.” The controversy here centered on whether the Commerce Clause gave Congress authority to regulate only commercial activity that occurred at the borders of states, or whether Congress could regulate activity occurring within states that would eventually lead to commercial activity between states. In other words, could Congress regulate only the actual passing of goods over state borders, or did the Commerce Clause allow Congress to regulate activity within states, like the transportation of goods, for example, that would lead to the passing of goods over state borders? Concluding that “[t]he word ‘among’ means intermingled with,” Chief Justice Marshall held that within the meaning of the Commerce Clause, Congressional authority to regulate commerce “cannot stop at the external boundary line of each State, but may be introduced into the interior.” He was careful to note, however, that Congress’s power under the Commerce Clause did not extend to the regulation of commercial activity taking place completely within one state which “does not extend to or affect other States.” Thus, Chief Justice Marshall adopted a broad interpretation of the Commerce Clause, giving Congress great authority to regulate commercial activity within and between states, and expanding the power of the federal government over the states.


Dred Scott v. Sandford, 1857 Slavery, Due Process, Missouri Compromise

Background Had he filed his lawsuit a few years earlier, Dred Scott probably never would have become a giant figure in U.S. history. Many people in Scott's position had won their lawsuits in state trial courts. However, by the time Scott's case made it to trial, U.S. political sentiments had changed and it took 11 years for his case to reach the Supreme Court of the United States. The Court's decision in Dred Scott v. Sandford remains among its most controversial.

Slavery was at the root of Dred Scott's case. He sued his master to obtain freedom for himself and his family. The argument he used was that because he had lived in a territory where slavery was illegal, he could never again be enslaved. This was a doctrine that was recognized in common law for centuries in Europe. In the state where he filed his suit, Missouri, many people in his situation had sued their masters for their freedom and won.

Dred Scott was born a slave in Virginia around 1799. In 1834, Dr. John Emerson, a surgeon in the U.S. army, bought Scott in Missouri and moved him to Illinois. Illinois was a free state. In 1836, Scott and Emerson moved to Fort Snelling, in present-day Minnesota. In the Missouri Compromise of 1820, Congress had prohibited slavery in the area that included Fort Snelling. Emerson bought a slave named Harriet and Scott married her in 1836. In 1838, Emerson and the Scotts moved back to Missouri. The Scotts had two daughters, Eliza, born around 1843, and Lizzie, born around 1850. Emerson died in 1843 and he left his possessions, including the Scotts, to his widow, Irene. They lived in St. Louis, Missouri. In 1846, Dred Scott asked Mrs. Emerson if he could work for money. If he could earn and save money, he could buy his freedom from Mrs. Emerson. According to Scott, she refused.

Scott sued Mrs. Emerson for "false imprisonment" and for battery. It was common for slaves who had been taken to free land to sue their masters and win their freedom. Scott sued Mrs. Emerson, claiming that Emerson held him illegally. Scott claimed that he had become a free man as soon as he lived in a free territory or state and then was taken against his will to a slave territory or state. In 1847, Emerson was able to win in Missouri Circuit court on a technicality; Scott's lawyers failed to prove to the jury that Emerson was holding Scott as a slave. Scott's lawyers successfully argued for a retrial with additional witnesses that could prove Emerson's ownership of Scott.

By the time the case went to trial in 1850, Mrs. Emerson had moved to Massachusetts and left John F.A. Sanford, her brother, in charge of her financial matters, including the Scott case. The jury agreed that Scott and his family should be free because of the doctrine "once free, always free." Sanford, acting for his sister, appealed to the Missouri Supreme Court. In 1852, two of the three judges found in favor of Mrs. Emerson and John Sanford. The decision consciously reversed earlier precedent. The newly elected proslavery justice, William Scott, wrote the decision, arguing that states like Missouri must have the power to refuse to enforce the laws of other states. Thus, regardless of wherever else Scott had been with his master, slavery was legal in Missouri.

Dred Scott's lawyers could have appealed the decision to the Supreme Court of the United States, but they feared that a majority of the justices would simply endorse the state court decision without considering its merits. By 1853, John Sanford was legally recognized as the owner of the Scotts. Sanford had moved to New York, leaving the Scotts in Missouri. Since federal courts settle the dispute between citizens of different states, Scott was able to sue Sanford in federal court in a new case. A clerk mistakenly added a letter to Sanford's name, so the case permanently became Dred Scott v. John F. A. Sandford.

In 1854, the U. S. Court for the District of Missouri heard the case. Judge Robert W. Wells rejected Sanford's assertion that Scott could not sue because he was not a citizen. However, the judge instructed the jury that, as the Missouri Supreme Court had said, Scott was subject only to the laws of Missouri. The jury found for Sanford. Scott then appealed to the Supreme Court of the United States. Unfortunately for Scott, the political divisions over slavery worsened from the time that his case first came to trial in 1847 through 1857 when the Supreme Court of the United States finally announced its decision. Events of this period that increased conflicts included the passage of the Fugitive Slave Act (1850), publication of Uncle Tom's Cabin (1852), enactment of The Kansas-Nebraska Act (1854), violence in "bleeding Kansas" (1856), and Representative Brooks's beating of Senator Sumner in the U.S. Senate (1856). Like almost all people of their time, the justices had strong personal views about slavery. One justice, Peter V. Daniel of Virginia, supported slavery so much that he even refused to travel north of the Mason-Dixon line into a free state. Some historians believe AP Gov: Landmark Supreme Court Cases 7

that Chief Justice Taney hoped that his decision in the Dred Scott case would help prevent, not create future disputes over slavery.


1. Dred Scott was the plaintiff (the person who sued the defendant) in this case. Why did he sue the Emersons and John Sanford? What was his goal?

2. Summarize the basic argument that Scott's lawyers used to support his case. Did Dred Scott have reason to believe that he would win his case?

3. Why was a new case brought to the federal court system? What circumstances made the case a federal question?

4. How do you think the bitter political climate of the day affected Dred Scott's chances of winning his case?

The Decision In a 7-2 opinion, a majority of the Supreme Court ruled in favor of Sanford.* Chief Justice Taney wrote the opinion for the Court. The Court first decided that African Americans were not citizens as defined by the Constitution. They then considered the merits of the case, ruling that slaves did not become free simply by entering a free state or a territory that had not yet become a state. This overturned the ruling of the lower federal court, but affirmed the ruling of the Missouri Supreme Court.

The Supreme Court first concluded that African Americans were not citizens as defined by the Constitution, and therefore, the Supreme Court and lower federal courts had no jurisdiction to hear this case. The decision cited Article III, Section 2 of the Constitution which gives federal courts the power to hear cases “between Citizens of different States.” To determine the definition of “citizens,” the justices considered the intent of the framers of the Constitution. They noted that at the time the Constitution was written, people of African descent, both slave and free, were “regarded as beings of an inferior order” and were “so far inferior that they had no rights which the white man was bound to respect.” Believing that the Court should not “give to the words of the Constitution a more liberal construction …than they were intended to bear when the instrument was framed and adopted,” the Court concluded that people of African descent were not citizens, and could therefore “claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.” This included the ability to bring suit in federal court.

Even though the Court determined that it did not have jurisdiction to hear this case because it did not involve “Citizens of different States,” the justices ruled on the merits of case anyway. They first argued that the power of Congress to regulate the internal workings of the territories that had not yet become states was limited. They concluded that an act of Congress prohibiting citizens from “owning [slaves] in the territor[ies] … is not warranted by the Constitution, and is therefore void.” The Court thereby struck down the Missouri Compromise as unconstitutional because Congress did not have the power under the Constitution to determine whether slavery was allowed in the territories, even those these were not states.

In addition, the Court concluded that slaves could not be made free simply by entering a free state or territory. This would deprive slave owners of their property without giving them due process of law as required by the Fifth Amendment. Accordingly, “an act of Congress which deprives a citizen of the United States of his …property, merely because he … brought his property into a particular Territory of the United States” was unconstitutional. The Court held, therefore, that Dred Scott and his family were “property” and were not made free simply by virtue of the fact that they were brought into a free territory.

*The defendant in this case case John Sanford, but the Court record misspelled his name, and the Court continues to call the case Dred Scott v. Sandford.


Plessy v. Ferguson, 1896 Separate but Equal, Equal Protection

Background In 1890, Louisiana passed a statute called the Separate Car Act, which stated "that all railway companies carrying passengers in their coaches in this state, shall provide equal but separate accommodations for the white, and colored races, by providing two or more passenger coaches for each passenger train, or by dividing the passenger coaches by a partition so as to secure separate accommodations. . . . " The penalty for sitting in the wrong compartment was a fine of $25 or 20 days in jail.

The Plessy case was carefully orchestrated by both the Citizens' Committee to Test the Constitutionality of the Separate Car Act, a group of blacks who raised $3000 to challenge the Act, and the East Louisiana Railroad Company, which sought to terminate the Act largely for monetary reasons. They chose a 30-year-old shoemaker named Homer Plessy, a citizen of the United States who was one-eighth black and a resident of the state of Louisiana. On June 7, 1892, Plessy purchased a first-class passage from New Orleans to Covington, Louisiana and sat in the railroad car designated for whites only. The railroad officials, following through on the arrangement, arrested Plessy and charged him with violating the Separate Car Act. Well known advocate for black rights Albion Tourgee, a white lawyer, agreed to argue the case without compensation.

In the criminal district court for the parish of Orleans, Plessy argued that the Separate Car Act violated the Thirteenth and Fourteenth Amendments to the Constitution.

Thirteenth Amendment Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Fourteenth Amendment Section 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

John Howard Ferguson was the judge presiding over Plessy's criminal case in the district court. He had previously declared the Separate Car Act "unconstitutional on trains that traveled through several states." However, in Plessy's case he decided that the state could choose to regulate railroad companies that operated solely within the state of Louisiana. Therefore, Ferguson found Plessy guilty and declared the Separate Car Act constitutional.

Plessy appealed the case to the Louisiana State Supreme Court, which affirmed the decision that the Louisiana law as constitutional. Plessy petitioned for a writ of error from the Supreme Court of the United States. Judge John Howard Ferguson was named in the case brought before the United States Supreme Court (Plessy v. Ferguson) because he had been named in the petition to the Louisiana Supreme Court and not because he was a party to the initial lawsuit.


1. What law did Homer Plessy violate? How did Plessy violate this law?

2. What rights do the Thirteenth and Fourteenth Amendments to the Constitution provide?

3. If you were Plessy's lawyer, how would you justify your claim that the "Separate Car Act" violates the Thirteenth and Fourteenth amendments?


4. In State of Louisiana v. Plessy, Judge Ferguson decided that the state could choose to regulate railroad companies that operated within the state even though he had previously declared the "Separate Car Act" unconstitutional on trains that traveled through several states. If an act is declared unconstitutional in one case, shouldn't it be held unconstitutional in all cases? How do you think Judge Ferguson could legally justify making this distinction?

5. Is it possible for two races to remain separated while striving for equality? Are separation and equality compatible? Why or why not?

6. Can you think of an example or situation where separation does not mean inequality?

The Decision In a 7-1 decision, the Supreme Court ruled in favor of Ferguson. The majority rejected Plessy’s Thirteenth and Fourteenth Amendment arguments, instead putting its stamp of approval on the doctrine of “separate but equal.” The dissent, written by Justice John Marshall Harlan, disagreed, arguing that segregationist laws indoctrinate society with the belief that the two races are not equal.

Justice Henry Brown wrote the majority opinion, which rejected Plessy’s argument that the Louisiana law conflicted with the Thirteenth Amendment, deeming the point “too clear for argument.” The justices then considered whether the law conflicted with the Fourteenth Amendment. They identified the purpose of the Fourteenth Amendment as “enforce[ing] the absolute equality of the two races before the law,” but then asserted that “it could not have been intended to abolish distinctions based upon color, or to enforce social…equality.” According to the Court, the Fourteenth Amendment was only concerned with legal, not social, equality.

In addition, the justices denied the argument that separation of the races by law “stamps the colored race with a badge of inferiority.” They argued instead that racial prejudice could not be overcome by “an enforced commingling of the two races.” According to this argument, outlawing segregation would not eliminate racial prejudice, because such societal beliefs could not be changed simply by changing the law. The Court concluded that “if one race be inferior to the other socially, the Constitution … cannot put them upon the same plane.”

The justices explained that because the Louisiana law did not conflict with the purpose of the Fourteenth Amendment, the only remaining question was whether it was “reasonable, and … enacted in good faith for the promotion for the public good.” Giving much deference to the state legislature of Louisiana, they determined that the law met this requirement because it furthered “the preservation of the public peace and good order.” Thus, so long as separate facilities were actually qualitatively equal, the Constitution did not prohibit segregation in the view of the majority of the Court.

Justice John Marshall Harlan dissented from the majority opinion. In an opinion that later became pivotal in the Brown v. Board of Education cases (1954), he argued that segregationist legislation, like the Louisiana law in this case, was based on the assumption that “colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens.” These laws promoted and perpetuated the belief that African Americans were inferior to whites, according to Justice Harlan. They must be struck down, he argued, because the government could not “permit the seeds of race hate to be planted under the sanction of law.” Justice Harlan believed that the constitution must be “color-blind,” and that it could allow “no superior, dominant ruling class of citizens.” Because segregation had the effect of creating such classes, he judged, it was unconstitutional.


Brown v. Board of Education, 1954 School Segregation, Equal Protection

Background In the early 1950s, Linda Brown was a young African American student in the Topeka, Kansas school district. Every day she and her sister, Terry Lynn, had to walk through the Rock Island Railroad Switchyard to get to the bus stop for the ride to the all-black Monroe School. Linda Brown tried to gain admission to the Sumner School, which was closer to her house, but her application was denied by the Board of Education of Topeka because of her race. The Sumner School was for white children only.

Under the laws of the time, many public facilities were segregated by race. The precedent-setting Plessy v. Ferguson case, which was decided by the Supreme Court of the United States in 1896, allowed for such segregation. In that case, a black man, Homer Plessy, challenged a Louisiana law that required railroad companies to provide equal, but separate, accommodations for the white and African American races. He claimed that the Louisiana law violated the Fourteenth Amendment, which demands that states provide "equal protection of the laws." However, the Supreme Court of the United States held that as long as segregated facilities were qualitatively equal, segregation did not violate the Fourteenth Amendment. In doing so, the Court classified segregation as a matter of social equality, out of the control of the justice system concerned with maintaining legal equality. The Court stated, "If one race be inferior to the other socially, the constitution of the United States cannot put them on the same plane."

At the time of the Brown case, a Kansas statute permitted, but did not require, cities of more than 15,000 people to maintain separate school facilities for black and white students. On that basis, the Board of Education of Topeka elected to establish segregated elementary schools. Other public schools in the community were operated on a nonsegregated, or unitary, basis.

The Browns felt that the decision of the Board violated the Constitution. They sued the Board of Education of Topeka, alleging that the segregated school system deprived Linda Brown of the equal protection of the laws required under the Fourteenth Amendment.

No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.—Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution

Thurgood Marshall, an attorney for the National Association for the Advancement of Colored People (NAACP), argued the Brown's case. Marshall would later become a Supreme Court justice.

The three-judge federal district court found that segregation in public education had a detrimental effect upon black children, but the court denied that there was any violation of Brown's rights because of the "separate but equal" doctrine established in the Supreme Court's 1896 Plessy decision. The court found that the schools were substantially equal with respect to buildings, transportation, curricula, and educational qualifications of teachers. The Browns appealed their case to the Supreme Court of the United States, claiming that the segregated schools were not equal and could never be made equal. The Court combined the case with several similar cases from South Carolina, Virginia, and Delaware. The ruling in the Brown v. Board of Education case came in 1954.QUESTIONS TO CONSIDER

1. What right does the Fourteenth Amendment give citizens?


2. What problems did Linda Brown encounter in Topeka that eventually resulted in this case?

3. What precedent did the Plessy v. Ferguson (1896) ruling establish? How was that precedent related to Brown?

4. This case is based on what the concept of "equality" means. What are the conflicting points of view on this concept in this case?

The Decision In a unanimous decision, the Supreme Court ruled in favor of Brown. The Court found the practice of segregation unconstitutional and refused to apply its decision in Plessy v. Ferguson to “the field of public education.” Chief Justice Earl Warren wrote the opinion for the Court.

The Court noted that public education was central to American life. Calling it “the very foundation of good citizenship,” they acknowledged that public education was not only necessary to prepare children for their future professions and to enable them to actively participate in the democratic process, but that it was also “a principal instrument in awakening the child to cultural values” present in their communities. The justices found it very unlikely that a child would be able to succeed in life without a good education. Access to such an education was thus “a right which must be made available to all on equal terms.”

The justices then assessed the equality of the facilities that the Board of Education of Topeka provided for the education of African American children against those provided for white children. Ruling that they were substantially equal in “tangible factors” that could be measured easily, (such as “buildings, curricula, and qualifications and salaries of teachers), they concluded that the Court must instead examine the more subtle, intangible effect of segregation on the system of public education.

Departing from the Court’s earlier reasoning in Plessy, the justices here argued that separating children solely on the basis of race created a feeling of inferiority in the “hearts and minds” of African American children. Segregating children in public education created and perpetuated the idea that African American children held a lower status in the community than white children, even if their separate educational facilities were substantially equal in “tangible” factors. This feeling of inferiority reduced the desire to learn and achieve in African American children, and had “a tendency to retard their educational and mental development and to deprive them of some of the benefits they would receive in a racially integrated school system.” Concluding that “separate education facilities are inherently unequal”, the Supreme Court ruled that segregation in public education denied African American children the equal protection of the laws guaranteed by the Fourteenth Amendment.

One year later, the Court addressed the implementation of its decision in a case known as Brown v. Board of Education II. Chief Justice Warren once again wrote an opinion for the unanimous court. The Court acknowledged that desegregating public schools would take place in various ways, depending on the unique problems faced by individual school districts. After charging local school authorities with the responsibility for solving these problems, the Court instructed federal trial courts to oversee the process and determine whether local authorities were desegregating schools in good faith, mandating that desegregation take place with “with all deliberate speed.”


Miranda v. Arizona, 1966 Self-Incrimination, Due Process

Background Ernesto Miranda was a poor man living in Phoenix, Arizona, in 1963. Miranda was arrested after a crime victim identified him in a police lineup. Miranda was charged with rape and kidnapping and interrogated for two hours while in police custody. The police officers questioning him did not inform him of his Fifth Amendment right against self-incrimination, or of his Sixth Amendment right to the assistance of an attorney.

As a result of the interrogation, he confessed in writing to the crimes with which he was charged. His written statement also included an acknowledgement that he was aware of his right against self-incrimination. During his trial, the prosecution used his confession to obtain a conviction, and he was sentenced to 20 to 30 years in prison on each count.

Miranda's defense attorney appealed to the Arizona Supreme Court. His attorney argued that his confession should have been excluded from trial because he had not been informed of his rights, nor had an attorney been present during his interrogation. The police officers involved admitted that they had not given Miranda any explanation of his rights. They argued, however, that because Miranda had been convicted of a crime in the past, he must have been aware of his rights. The Arizona Supreme Court denied his appeal and upheld his conviction.

The case comes down to this fundamental question: What is the role of the police in protecting the rights of the accused, as guaranteed by the Fifth and Sixth Amendments to the Constitution? The Fifth Amendment states that no person "shall be compelled in any criminal case to be a witness against himself. . . ." The Sixth Amendment states that, "In all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense." The Supreme Court of the United States had made previous attempts to deal with these issues. In Brown v. Mississippi (1936), the Court had ruled that the Fifth Amendment protected individuals from being forced to confess. In Gideon v. Wainwright (1963), the Court held that persons accused of felonies have a fundamental right to an attorney, even if they cannot afford one. In 1964, after Miranda's arrest, the Court ruled that when an accused person is denied the right to consult with his attorney, his or her Sixth Amendment right to counsel is violated (Escobedo v. Illinois). But do the police have an obligation to ensure that the accused person is aware of these rights? If so, at what point in the criminal justice process must the defendant learn of these rights?

In 1965, the Supreme Court of the United States agreed to hear Miranda's case. At the same time, the Court agreed to hear three similar cases, Vignerav. New York, Westover v. United States, and California v. Stewart. The Court combined the four cases. Since Miranda was listed first among the four cases considered by the Court, the decision came to be known by that name. The decision in Miranda v. Arizona was handed down in 1966.


1. What rights of the accused does the Fifth Amendment protect? The Sixth Amendment?

2. How might knowledge of these rights have changed what Ernesto Miranda did when the police questioned him?

3. Individual rights must be balanced against the values of society at large. For instance, the right to free speech must be balanced against our desire for an orderly society. This is why demonstrations, while protected by the First Amendment, can have certain restrictions placed on them. In Miranda, what values must be balanced against the right against self-incrimination and the right to counsel?


4. You are probably learning about the rights of the accused in a government or history class. Some would argue that it is the individual's responsibility to know what his or her rights are under the Constitution, and the government can assume that accused persons know their rights without informing them. Do you think the government should have to inform each individual who is arrested of his or her rights? Why or why not?

The Decision In a 5-4 opinion, the Supreme Court ruled in favor of Miranda. The majority opinion, written by Chief Justice Earl Warren, concluded that defendants arrested under state law must be informed of their constitutional rights against self-incrimination and to representation by an attorney before being interrogated when in police custody. Justices Clark, Harlan, Stewart and White dissented.

In their majority opinion, the justices explained that the Fifth Amendment right against self-incrimination is fundamental to our system of justice, and is “one of our Nation’s most cherished principles.” This guarantee requires that only statements freely made by a defendant may be used in court. The justices described some of the techniques used by police officers in interrogations. They observed that “the modern practice of in-custody interrogation is psychologically rather than physically oriented,” and cited the advantage police officers hold in custodial interrogations (interrogations that take place while the subject is in police custody). Because of these advantages, they concluded that “the very fact of custodial interrogation exacts a heavy toll on individual liberty, and trades on the weakness of individuals.”

The Court ruled that in order to reconcile the necessary practice of custodial interrogations with the guarantees of the Fifth Amendment, police must ensure that defendants are aware of their rights before they are interrogated in custody. Because the right against self-incrimination is so important to our system of justice, a case by case determination made by police officers of whether each defendant understands his or her rights is not sufficient. Before interrogating defendants in police custody, they must be warned 1) that they have the right to remain silent 2) that anything they say may be used against them in court, 3) that they have the right to an attorney, either retained by them or appointed by the court, and 4) that they may waive these rights, but they retain the right to ask for an attorney any time during the interrogation, at which point the interrogation can only continue in the presence of a lawyer.

The Supreme Court reasoned that because the right against self-incrimination is so fundamental, and because it is so simple to inform defendants of their rights, any statements made by defendants during a custodial interrogation in which the defendant has not been read his “Miranda rights” are inadmissible in both state and federal courts.

Justice Harlan wrote the main dissent. He argued that the newly created rules did not protect against police brutality, coercion or other abuses of authority during custodial interrogations because officers willing to use such illegal tactics and deny their use in court were “equally able and destined to lie as skillfully about warnings and waivers.” Instead, he predicted that the new requirements would impair and substantially frustrate police officers in the use of techniques that had long been considered appropriate and even necessary, thus reducing the number of confessions police would be able to obtain. He concluded that the harmful effects of crime on society were “too great to call the new rules anything but a hazardous experimentation.”


Tinker v. Des Moines, 1969 Student Speech, Symbolic Speech

Background John and Mary Beth Tinker were public school students in Des Moines, Iowa in December of 1965. As part of a group against American involvement in the Vietnam War, they decided to publicize their opposition by wearing black armbands to school. Having heard of the students' plans, the principals of the public schools in Des Moines adopted and informed students of a new policy concerning armbands. This policy stated that any student who wore an armband to school would be asked immediately to remove it. A student who refused to take off his or her armband would be suspended until agreeing to return to school without the band.

Two days later and aware of the school policy, the Tinker children and a friend decided to wear armbands to school. Upon arriving at school, the children were asked to remove their armbands. They did not remove the armbands and were subsequently suspended until they returned to school without their armbands.

The children returned to school without armbands after January 1, 1966, the date scheduled for the end of their protest. However, their fathers filed suit in U.S. District Court. This suit asked the court for a small amount of money for damages and an injunction to restrain school officials from enforcing their armband policy. Although the District Court recognized the children's First Amendment right to free speech, the court refused to issue an injunction, claiming that the school officials' actions were reasonable in light of potential disruptions from the students' protest. The Tinkers appealed their case to the U.S. Court of Appeals but were disappointed when a tie vote in that court allowed the District Court's ruling stand. As a result they decided to appeal the case to the Supreme Court of the United States.

The case came down to this fundamental question: Do the First Amendment rights of free speech extend to symbolic speech by students in public schools? And, if so, in what circumstances is that symbolic speech protected? The First Amendment states "Congress shall make no law . . . abridging the freedom of speech." The Fourteenth Amendment extends this rule to state governments as well, of which school systems are a part. The First Amendment, however, does not identify which kinds of speech are protected. For example, it is not clear whether hate speech against an individual or group is protected. Neither does the First Amendment specify what types of expressive actions should be considered as speech.

The Supreme Court of the United States has made many attempts to determine what types of symbolic speech are protected under the First Amendment. In 1919, the Court decided in Schenck v. United States that an individual could be punished for distributing anti-World War I pamphlets urging non-compliance with the draft because the pamphlets "create[ed] a clear and present danger that they will bring about [a] substantive evil[ . . .] Congress has a right to prevent"—draft obstruction. The Court wrestled with the issue of the right to symbolic speech again in the case of Thornhill v.Alabama (1940) when the Court ruled that picketing was a form of symbolic speech protected by the First Amendment because no clear and present danger of destruction of life or property or of breach of the peace was inherent in the action. Three years later in West Virginia v. Barnette (1943), the Court extended the First Amendment protection of symbolic speech to students in public schools. In Barnette, the Court held "[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion. . . ."

In 1968 the Supreme Court of the United States agreed to hear Tinker's case and consider the constitutionality of the Des Moines principals' anti-armband policy. The Court's decision in Tinker v. Des Moines was handed down in 1969.


1. Do you think that the school policy banning armbands was fair? Why or why not?

2. The students knew they would be suspended if they wore armbands to school and chose to do so anyway. Why do you think they ignored the rule?

3. The First Amendment says "Congress shall make no law . . . abridging the freedom of speech." Why do you think the Supreme Court of the United States has ruled that certain actions should have the same protection as verbal speech? Are these reasons valid?


4. In both Schenck and Thornhill, the Court seemed to make a rule that certain actions were guaranteed protection under the First Amendment's freedom of speech clause as long as those actions did not . . . What rule or test did the Court seem to make?

5. Pretend that students in your school wanted to protest the school-wide ban on smoking. Should they legally be allowed to protest by wearing T-shirts that read "Up with 'Butts'!"? Why or why not?

The Decision In a 7-2 decision, the Supreme Court ruled in favor of the Tinkers. Justice Fortas wrote the majority opinion, ruling that students retain their constitutional right of freedom of speech while in public school. Justices Black and Harlan dissented.

The Court ruled that students are entitled to exercise their constitutional rights, even while in school. The justices reasoned that neither “students (n)or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Because student expression is protected by the First Amendment even while in school, school officials must provide constitutionally valid reasons for regulating student expression.

The justification for the regulation must be more than “a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.” School officials must show that the expression would cause a “material and substantial disruption” with the discipline and educational function of the school. The Court decided that allowing the Tinkers to wear their armbands protesting the Vietnam conflict would not “substantially interfere with the work of the school or impinge upon the rights of other students.” Wearing the armbands was a “silent, passive expression of opinion” that did not involve any “disorder or disturbance,” and was unlikely to cause a “material and substantial disruption” in the school.

In addition, the justices noted that the school officials specifically targeted anti-war armbands, but did not prohibit the wearing of any other symbols conveying a political message. Reasoning that “the prohibition of expression of one particular opinion … is not constitutionally permissible,” they concluded that “school officials do not possess absolute authority over their students.”

In his dissenting opinion, Justice Black acknowledged that while the content of speech generally cannot be regulated or censored, “it is a myth to say that any person has a constitutional right to say what he pleases, where he pleases, and when he pleases.” According to Justice Black, the Tinkers’ armbands did indeed cause a disturbance by taking students’ minds off their class work “and divert[ing] them to thoughts about the highly emotional subject of the Vietnam War.” This was exactly what school officials were trying to prevent. Justice Black believed that the majority’s ruling was too restrictive on school officials, overly limiting their control over their schools, and subjecting public schools to “the whims and caprices of their loudest-mouthed … students.”


Roe v. Wade, 1973 Abortion, Right to Privacy

Background In the latter part of the nineteenth century and the first half of the twentieth century, most states adopted laws strictly regulating the availability of abortions. Many states outlawed abortion except in cases where the mother’s life was in jeopardy. Illegal abortions were widespread and often dangerous for women who undertook them because they were performed in unsanitary conditions.

The sexual revolution that began in the second half of the twentieth century resulted in public pressure to ease abortion laws. As some states began to relax abortion restrictions, some women found it relatively easy to travel to a state where the laws were less restrictive or where a doctor was willing to certify medical necessity.

However, poor women often could not travel outside their state to receive treatment, raising questions of equality. Statutes were often vague, so that doctors did not really know whether they were committing a felony by providing an abortion. In addition, government interference in sexual matters was beginning to be called into question by a changing conception of privacy.

There is no right to privacy explicitly guaranteed in the Constitution. However, the Supreme Court has long acknowledged some right to privacy. In earlier rulings about privacy, the Supreme Court seemed to connect the right to privacy to location, with a particular emphasis on a person’s home. This association stemmed from notions of property rights and centered on people’s personal property.

However, in the second half of the last century, the Court’s position on privacy came to be seen as a right connected to a person, not to a location. The change in conceptions of privacy can be seen clearly in the landmark decision of Griswold v. Connecticut (1965). The Supreme Court ruled that a Connecticut statute outlawing access to contraception violated the U.S. Constitution because it invaded the privacy of married couples to make decisions about their families. In that ruling, the Court identified privacy as a transcendent value, fundamental to the American way of life, and to the other basic rights outlined in the Bill of Rights. Though the decision focused on the fundamental nature of privacy associated with marriage, the case set the stage for the Court to proceed further in its protection. Seven years later, the Court decided a case that extended access to contraception to unmarried persons, as well.

While the word privacy does not appear in the Constitution, the argument for protecting privacy is based on the Due Process Clause of the 14th Amendment. That clause has been found to protect certain fundamental rights against government action.

Jane Roe, a pseudonym used to protect her identity, was an unmarried and pregnant Texas resident in 1970. She wanted to have an abortion, but Texas abortion law made it a felony to abort a fetus unless “on medical advice for the purpose of saving the life of the mother.” Roe filed suit against Wade, the district attorney of Dallas County, Texas to challenge the statute outlawing abortion.

Roe contested the statute on the grounds that it violated the Fourteenth Amendment mandating equal protection of the laws and the guarantee of personal liberty, and a mother’s right to privacy implicitly guaranteed in the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. The state argued that “the right to life of the unborn child is superior to the right to privacy of the mother.” The state also argued that in previous decisions where the Court protected individual or marital privacy, that right was not absolute. The state argued that this is a policy matter best left to the legislature to decide. A three-judge federal district court ruled the Texas abortion law unconstitutional, and the case was then appealed directly to the U.S. Supreme Court.


1. What was the Texas law at issue here?

2. How did the right to privacy change over the course of the last half-century?


3. Do you believe that privacy is a fundamental right, necessary to secure the other rights in the Bill of Rights? Why or why not?

4. Do the Supreme Court’s decisions in the contraception cases prohibit states from outlawing abortion? Explain.

The Decision The Supreme Court decided in favor of Roe in a 7-2 decision. Justice Blackmun wrote the opinion for the majority, which recognized that a woman’s choice whether to have an abortion is protected by her right to privacy. Justices Stewart, Burger and Douglas wrote concurring opinions. Justices White and Rehnquist dissented.

The majority determined that a woman’s right to decide whether to have an abortion involved the question of whether the Constitution protected a right to privacy. The justices answered this question by asserting that the Fourteenth Amendment, which prohibits states from “depriv[ing] any person of … liberty … without due process of law,” protected a fundamental right to privacy. Further, after considerable discussion of the law’s historical lack of recognition of rights of a fetus, the justices concluded “the word ‘person’, as used in the Fourteenth Amendment, does not include the unborn.” The right of a woman to choose to have an abortion fell within this fundamental right to privacy, and was protected by the Constitution.

A woman’s right to choose to have an abortion was not considered an absolute right. The Court stated that government restrictions on a woman’s right to choose were subject to the highest standard of review, that of strict scrutiny. This level of review requires that in order to be enforceable, a government regulation of this right must be shown to be narrowly tailored to a meet a compelling state interest. The justices noted that states did have some legitimate interests in regulating or prohibiting abortions. The first interest was the protection of the health of the mother from the dangers of abortion procedures; the second was the protection of the life of the fetus. While these interests were not very strong in the early stages of pregnancy, they became stronger (more compelling) in the later stages of the pregnancy. Striking a balance between a woman’s right to privacy and a state’s interests, the Court set up a framework laying out when states could regulate and even prohibit abortions.

According to the framework, in the first trimester (the first three months of the pregnancy), a woman’s right to privacy surrounding the choice to have an abortion outweighed a state’s interests in regulating this decision. In the first trimester, having an abortion does not pose a grave danger to the life and health of the mother, and the fetus is still undeveloped. The state’s interests are not yet compelling, so it cannot interfere with a woman’s right to privacy by regulating or prohibiting her from having an abortion during the first trimester. During the second trimester, the state’s interests become more compelling as the danger of complications increases and the fetus becomes more developed. During this stage, it may regulate, but not prohibit abortions, as long as the regulations are aimed at protecting the health of the mother. During the third trimester, the danger to the woman’s health becomes the greatest and fetal development nears completion. In the final trimester the state’s interests in protecting the health of the mother and in protecting the life of the fetus become their most compelling. The state may regulate or even prohibit abortions during this stage, as long as there is an exception for abortions necessary to preserve the life and health of the mother.

In his dissenting opinion, Justice Rehnquist argued that the framers of the Fourteenth Amendment did not intend for it to protect a right of privacy, a right which they did not recognize, and that they definitely did not intend for it to protect a woman’s decision to have an abortion. Justice Rehnquist further argued that the only right to privacy is that which is protected by the Fourth Amendment’s prohibition of unreasonable searches and seizures. Finally, he concluded that because this issue required a careful balance of the interests of the woman against the interests of the state, it was not an appropriate decision for the Court to make, but instead was a question that should have been left up to state legislatures to resolve.


United States v. Nixon, 1974 Watergate, Checks & Balances

Background In 1972, five burglars were caught breaking into the Democratic National Committee Headquarters at the Watergate Hotel and office complex in Washington, D.C. Media and government investigation of the break-in revealed that the burglars were associated with the campaign to re-elect Nixon. The inquiries also revealed that the president and his aides had probably abused their power in other ways as well.

During the congressional hearings on the break-in scandal, it was revealed that President Nixon had installed a tape-recording device in the Oval Office. The special prosecutor in charge of the case wanted to get tapes of the Oval Office discussions to help prove that President Nixon and his aides had abused their power and broken the law. President Nixon tried to stop the special prosecutor from obtaining the tapes and even had him removed from his job. However, a new special prosecutor, supported by the ruling of a federal district court judge, again requested the tapes. The president responded to this demand by releasing edited transcripts and shortened versions of the tapes. His incomplete compliance with the special prosecutor's demands was challenged in another federal district court case. The court ordered the president to respond to all of the special prosecutor's requests. When the president appealed this decision to the U.S. Circuit Court of Appeals, the special prosecutor asked the Supreme Court of the United States to hear the case instead.

In front of the Supreme Court of the United States, President Nixon's lawyers argued that the case couldn't be heard in the courts because it involved a dispute within the executive branch. In case the Supreme Court disagreed, Nixon's lawyers also argued that the president's executive immunity and privilege should protect the tapes. The concept of executive privilege, though not specifically detailed in the U.S. Constitution, is based on the constitutional separation of powers. It provides a certain level of confidentiality of communication between the president and his aides, especially where defense and national security are concerned. President Nixon's lawyers argued for an absolute executive privilege based only on his discretion.

The special prosecutor, however, argued that executive privilege is not absolute and that in this case the confidentiality normally accorded a president and his aides had to give way to the demands of the legal system in a criminal case. To give the president absolute executive privilege, he claimed, would amount to an unchecked power that could undermine the rule of law.

QUESTIONS TO CONSIDER:

1. Why might a president want to record conversations held in the Oval Office? Why do you think President Nixon taped his conversations even though he was discussing illegal activities with his aides?

2. Based on the reading, what is "executive privilege"?

3. While "executive privilege" cannot be found in the U.S. Constitution, it is derived from the separation of powers outlined there. Explain how applying the separation of power leads to the claim of executive privilege.

In what type of circumstance would the nation's interests allow the president to keep his communication with aides confidential?


4. Executive privilege and rule of law are both important concepts for American democracy. How should the courts determine which is more important when the exercise of executive privilege interferes with the rule of law?

The Decision In a unanimous decision, the Court ruled in favor of the United States and against President Nixon. Chief Justice Burger, wrote the opinion for the Court, which concluded that presidents do enjoy a constitutionally protected executive privilege, but that the privilege was not absolute. The Court decided that in this case, the President’s interest in keeping his communications secret was outweighed by the interests of the judiciary in providing a fair trial with full factual disclosure.

President Nixon’s attorneys first argued that the doctrine of separation of powers prevented the Supreme Court from hearing this case at all. They asserted that because the judicial and executive branches are separate, each with its own functions, the judicial branch should not be allowed to interfere with the functioning of the executive branch. The Court rejected this argument, responding that the case raised a constitutional question, and therefore clearly fell within the functions of the judicial branch as interpreter of the Constitution. To support this ruling, the justices cited the Court’s decision in Marbury v. Madison, in which the Court declared that “it is the province and duty of the judicial department to say what the law is.”

President Nixon’s lawyers also asserted that the Court should find the president was entitled to absolute executive privilege. This meant that he could not be forced to reveal any of his confidential communications unless he chose to. The lawyers set out two reasons to support their argument. First, the president needed honest advice from his advisors, and these advisors might be uncomfortable giving advice if they knew that it could become public. Second, these confidential communications were essential for the president to carry out the duties assigned to the executive branch by the Constitution.

The Court acknowledged the validity of theses interests and that the president was entitled to a degree executive privilege. This privilege was not determined to be absolute. In this case, the interest of President Nixon in keeping his communications secret conflicted with the interests of the judicial branch in providing a full and fair trial. A fair trial required full disclosure of all facts and relevant information. The justices asserted that the interests of the president must be balanced against the interests of the judicial branch when these interests conflict.

The justices reasoned that the judiciary’s interest in the “fair administration of criminal justice” outweighed President Nixon’s interest in keeping the content of his tapes secret. One reason for this was that the only issue before the Court was whether the trial judge could privately inspect the tapes to determine whether they were essential to a fair trial. The justices further stated that there would be cases in which the president’s need for confidentiality would outweigh the interests of the judicial branch, such as when the secret communication involved “military, diplomatic or sensitive national security secrets.”


Hazelwood v. Kuhlmeier, 1988 Censorship, Student Press Rights

Background In May 1983, students in the Journalism II class at Hazelwood East High School in St. Louis, Missouri, generated the final edition of their school paper, the Spectrum. As was customary, they submitted the paper to their advisor, Howard Emerson, who was new to the job. He followed the procedures of the recently departed previous advisor, giving the principal, Robert Reynolds, the opportunity to review the paper prior to publication.

When Reynolds reviewed the paper, he found two articles that concerned him. The first article addressed the issue of teen pregnancy, including comments from pregnant students at the school. Although names were not given, Reynolds thought there were enough details in the article to make it easy for other students to determine the identities of the pregnant teens. He was concerned about the privacy of those students. The second article was about divorce and, like the first article, this one included personal articles. In this article, Reynolds was not concerned so much about the students, but, rather, about what they said about their families. For instance, one student whose parents were divorced made negative comments about her father, claiming that her father was always out with the guys, that he didn't spend enough time with his family, and that the father and mother were always arguing. Reynolds was troubled by the fact that the father had not been given a chance to defend himself by responding to his daughter's comments. He also noticed that the article mentioned sex and birth control. He did not think that students in ninth grade should be reading about sex and birth control.

Reynolds wanted the students to make changes in their articles, but he was afraid that if they took the time to do so, they would miss the deadline for publishing the Spectrum. He did not want that to happen, especially because it was the last issue of the year and there would not be another chance to publish the paper. He felt like he had to make a quick decision, so he told Emerson to delete the two pages with the questionable articles and publish the remainder of the paper. He informed his superiors in the school system of this decision; they supported him wholeheartedly.

The students had invested a great deal of time and energy in producing the paper and felt that they had followed proper journalism procedures. If they had been approached about the problems, they may have been able to resolve them. They were upset to find out instead that two pages, which included a number of non-offensive articles, had been deleted. They felt that this censorship was a direct violation of their First Amendment rights, so they took their case to the U.S. District Court for the Eastern District of Missouri. This court did not agree with the students; the judges said that school officials might impose limits on students' speech in activities that are "an integral part of the school's educational function" as long as their decision "has a substantial and reasonable basis." In other words, the court felt that if the school has a good reason to do so, it could place limits on curricular activities, such as the publication of the school newspaper.

Unhappy with the outcome, the students appealed their case to the Court of Appeals for the Eighth Circuit. This court reversed the decision of the lower court, saying that the students' First Amendment rights were violated. In the opinion, the court conceded that the newspaper was indeed a part of the school curriculum but noted that it was also a "public forum." As a public forum, the newspaper was "intended to be and operated as a conduit for student viewpoint." Because the paper was a forum for student discussion, the principal or other officials could censor it only when "necessary to avoid material and substantial interference with school work or discipline . . . or the rights of others."

The school appealed the decision of the Court of Appeals and the Supreme Court of the United States agreed to hear the case. In determining whether or not students' rights were violated, it would consider whether or not the student newspaper was a public forum and whether the First Amendment "requires a school affirmatively to promote particular student speech."


1. Why did the newspaper advisor give the paper to Principal Reynolds for review? Was this standard procedure?

2. What concerns did Principal Reynolds have regarding the two articles? Were these legitimate concerns? Do you think the principal had any options other than deleting entire pages from the student paper?


3. What rights did the students believe had been violated? What is the relevant wording of the First Amendment?

4. Were there steps the students could have taken other than filing a lawsuit?

5. Should a principal be able to censor student newspapers? If so, under what conditions?

6. Should a principal or other school authority be able to silence other forms of student speech? If so, under what conditions? How does speech by an individual student differ from speech by the school newspaper?

The Decision The Supreme Court ruled against the students in a 5-3 decision. Justice White wrote the majority opinion, concluding that the First Amendment does not prevent school officials from exercising reasonable authority over the content of school-sponsored publications. Justice Brennan wrote a dissenting opinion, which was joined by Justices Marshall and Blackmun.

The majority opinion first considered whether school-sponsored student newspapers are public forums. If they were public forums, school officials would not be allowed to exercise editorial control over the content of the paper. Referring to Supreme Court precedent, the decision noted that school facilities are only considered to be public forums when school authorities have “’by policy or by practice’ opened those facilities ‘for indiscriminate use by the general public.’” If the facilities are used for other purposes, however, they do not constitute a public forum, and “school officials may impose reasonable restrictions on the speech of students.” The school newspaper in this case was not open to the unlimited contribution of students, teachers and other members of the community, but was instead published as part of the curriculum of a journalism class. Therefore, its primary function was for educational purposes, and the newspaper did not constitute a public forum.

The Court then addressed the question of whether the First Amendment “requires a school affirmatively to promote particular student speech.” They concluded that it does not. The First Amendment rights of students in public schools are not necessarily equal to those of adults outside of schools. “A school need not tolerate student speech that is inconsistent with its ‘basic educational mission, even though the government could not censor similar speech outside the school.”

The Court decided that the issues involved in this case differ from those the Court ruled on in Tinker v. Des Moines. In that case, the Court questioned whether school officials could “silence a student’s personal expression that happens to occur on the school premises.” Hazelwood, however, forced the Court to consider the extent of school officials’ control over “school-sponsored publications … and other expressive activities that students, parents, and members of the public might reasonably perceive to bear the [approval] of the school.” Tinker asked whether schools must tolerate certain student speech, while this case questioned whether schools must endorse student speech.

The Supreme Court concluded that the First Amendment does not force schools to endorse student speech in their school-sponsored publications. School officials have authority and control over these publications in order to ensure that “participants learn whatever lessons the activity is designed to teach, that readers or listeners are not exposed to material that may be inappropriate for their level of maturity, and that the views of the individual speaker are not erroneously attributed to the school.” Therefore, as long as the editorial control of school officials was “reasonably related to legitimate pedagogical concerns” such as those mentioned above, it did not offend the First Amendment.

Justice Brennan disagreed. In his dissenting opinion, Brennan acknowledged that inside public schools, students’ rights are not necessarily equal to those they enjoy outside of school, but he also argued that as the Court said in Tinker, “students in the public schools do not ‘shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.’” There must be a balance struck between the free expression rights of students and the interests of schools officials in maintaining order and discipline, he declared, and that balance was already struck in Tinker. School officials must refrain from interfering with student speech unless it causes a “material and substantial disruption.” Justice Brennan concluded that the Tinker standard should have been applied in this case, and that the Court should have ruled in favor of the students because “public educators must accommodate some student expression even if it offends them or offers views or values that contradict those the schools wishes to inculcate.”


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