Time Line: The History of the Supreme Court
This is a time line of landmark cases handed down by the Supreme Court since 1792. The cases are organized according to the major themes of this site. Click on any theme name for an expanded time line.
| US Events |
| Condensed Events |
| Date |
| President |
| Court |
| The Court Defines Itself |
| The Court and Basic Rights |
| The Court and Gender |
| The Court and Young People |
| The Court Today |
| Date |
| Hylton v. U.S.
(1793)
Decided by a vote of 3 to 0. Conflict: (Article I, Power to Tax; Judicial Review) In 1794, the United States Congress passed "An act to lay duties upon carriages for the conveyance of persons." During the debate in Congress the emerging Jeffersonian faction argued that Congress had exceeded its constitutional taxing authority. The bill passed and a tax of $16 was levied on each carriage used to transport people, whether for business or private use. Daniel Lawrence Hylton, a wealthy merchant in Virginia, agreed to test the law's constitutionality, which had a disproportionate impact on Virginians, who owned a larger number of carriages than other Americans. Hylton claimed to own 125 "chariots," for his own private use. The United States sued Hylton for failure to pay $2,000 in taxes (Knowing the claim was fictional, both parties agreed that if Hylton lost the case he would pay only $16.) Federal tax authorities, including Secretary of the Treasury Alexander Hamilton, the Jeffersonians' archrival, also wished to test the law, hoping the Federalist-leaning judges would uphold national taxing authority. Hylton contested the constitutionality of the Carriage Act in the Federal Circuit Court of Virginia. His lawyer, John Taylor, claimed the carriage duty was a uniform, direct tax, forbidden under Article I, Section 9, clause 4, which required all direct taxes to be proportional, based on the population and number of representatives of each state. The government argued that it was an indirect tax, legal under Article I, Section 8, clause 1. Attorney General Charles Lee argued the case on its constitutional merits; Alexander Hamilton argued it on its economic merits, citing Adam Smith and the Wealth of Nations, which was quoted in the Justice Samuel Chase's decision. Opinion: At the time of Hylton v. United States, the Supreme Court had not yet adopted the format of delivering an opinion. Instead, the justices delivered the decision ad seriatim, that is, one after the next, beginning with the junior member of the Court (Justice Samuel Chase) and concluding with the senior member of the court (Justice James Wilson.) Chief Justice Oliver Ellsworth, having been sworn in the morning of the decision, declined to participate; Justice William Cushing also declined, having missed arguments due to "indisposition." The three participating judges (Samuel Chase, William Paterson, and James Iredell) unanimously declared the carriage levy to be an indirect tax, and therefore constitutional. Context: Although the Supreme Court may try to be apolitical in theory, it has been drawn into political controversy from its earliest days. George Washington may have despised political factions, but the basic ideologies of modern political parties have their roots in the differing world-views of two members of his cabinet, Alexander Hamilton (Secretary of Treasury) and Thomas Jefferson (Secretary of State.) During the ratification of the U.S. Constitution, splits began to form in the ranks of the leaders of the Revolutionary period; for example, George Mason refused to sign fellow Virginian James Madison's proposed Constitution. With the onset, moreover, of the French Revolution and the Napoleonic era, alliances, formed during the ratification of the Constitution, fractured--Alexander Hamilton and John Jay (the first Chief Justice) were at odd with co-Federalist author James Madison; Declaration of Independence committee members John Adams and Thomas Jefferson had a long, bitter falling out before reconciling in their old age. The Jeffersonian Democratic-Republican faction did not have control of the U.S. Congress or the presidency in 1796, so it worked for change on two levels. The emerging political party expressed its ideas through print and by contesting elections, to win political power. It also worked for change through the federal courts, hoping that the third branch of government would check and balance acts of Congress that the Jeffersonians believed would over-empower the national government. Hylton v. United States represents the beginning of a distinctly American form of political challenge: a constitutional test case. This early judicial review case was unusual, too, in that the Jeffersonians hoped the Supreme Court would strike down (rather than uphold) an act of Congress. The Court's decision was controversial because it sustained the Carriage Act (and because the justices were Hamiltonian Federalists.) Although the Supreme Court exercised its power of judicial review in the case, the partisan brawls continued to hobble the Court's stature. Impact/Consequences: Although the Carriage Tax was repealed shortly after Jefferson was inaugurated, on April 6, 1789, the case has had lasting consequences. Hylton v. United States was the first case in which the United States Supreme Court was called upon to review the constitutionality of an act of Congress, and upheld it. It is the Court's first step in the direction of judicial review, as envisioned by Alexander Hamilton in Federalist 78. Although the Court did not directly address the issue, the justices clearly assumed that they had the power to declare null and void acts of Congress that violated the Constitution. It would remain for Chief Justice John Marshall to directly state in Marbury v. Madison (1803) the powers of judicial review under the Constitution. Furthermore, the justices' discussion of what constitutes a direct tax has helped to shape federal tax policy to the present. The reason for Congress stating that direct taxes can only be levied proportionally stemmed from the arbitrary taxation without representation imposed on the Colonies by the British, which was a direct cause of the American Revolution. Also, southern states feared that northern representatives to Congress might place special taxes on slaves. With this decision, the Court narrowed the definition of direct taxes, paving the way for an excise tax and for income taxes, neither of which affected everyone equally. Quotes: "The tax on carriages succeeded in spite of the Constitution by a majority of 20, the advocates of the principle being re-enforced by the adversaries of luxury."--James Madison, May 7, 1794, letter "The argument turned entirely upon this point, whether the tax on carriages for the conveyance of persons, kept for private use, was a direct tax? For, if it was not a direct tax, it was admitted to be rightly laid, within the first clause of the eighth section of the first article of the Constitution, which declares 'that all duties, imposts and excises, shall be uniform throughout the United States:' But it was contended, that if it was a direct tax, it was unconstitutionally laid, as another clause of the same section provides, 'that no capitation, or other direct, tax shall be laid, unless in proportion to the census, or enumeration, of the inhabitants of the United States.' 1796 Hylton v. United States "As I do not think the tax on carriages is a direct tax, it is unnecessary, at this time, for me to determine, whether this court, constitutionally possesses the power to declare an act of Congress void, on the ground of its being made contrary to, and in violation of, the Constitution; but if the court have such power, I am free to declare, that I will never exercise it, but in a very clear case. I am for affirming the judgment of the Circuit Court."--Justice Samuel Chase, 1796 Hylton v. United States opinion "The provision was made in favor of the southern States. They possessed a large number of slaves; they had extensive tracts of territory, thinly settled, and not very productive. A majority of the states had but few slaves, and several of them a limited territory, well settled, and in a high state of cultivation. The southern states, if no provision had been introduced in the Constitution, would have been wholly at the mercy of the other states. Congress in such cases, might tax slaves, at discretion or arbitrarily, and land in every part of the Union after the same rate or measure: so much a head in the first instance, and so much an acre in the second. To guard them against imposition in these particulars, was the reason of introducing the clause in the Constitution, which directs that representatives and direct taxes shall be apportioned among the states, according to their respective numbers."--Justice William Patterson, 1796 Hylton v. United States opinion Questions to Ponder:
Selected Bibliography: Wiecek, William M. Liberty Under Law: The Supreme Court in American Life. (Baltimore: The John Hopkins University Press, 1988.) Levy, Leonard W. Seasoned Judgments: The American Constitution, Rights, and History. (New Brunswick, NJ: Transaction Publishers, 1995.) Urofsky, Melvin, and Paul Finkelman, eds. Documents of American Constitutional and Legal History. (New York: Oxford University Press, 2002.) Gateway Links: |
| Chisholm v. GA
(1793)
Decided by a vote of 4 to 1. Conflict: (Article III, State Sovereignty; Federal Judicial Jurisdiction) In 1777, Captain Robert Farquhar, a merchant of South Carolina, sold clothing to the colony of Georgia valued at $169,613.33. Shortly afterwards, Farquhar (a Loyalist) returned to England where he died in 1784. Georgia, like many other colonies during the American Revolution, passed a law "sequestering" or freezing debts owed to Loyalists. The executor of Farquhar's estate, Alexander Chisholm, argued that Georgia should pay since the contract had been agreed upon prior to the sequestering act. Georgia refused to appear in the suit, claiming that it was immune to such suits as an independent and sovereign state. This stand by Georgia directly challenged Article III, section 2, of the Constitution, which authorized the Supreme Court to hear disputes between "a state and Citizens of another state." Opinion: At the time of Chisholm v. Georgia, the Supreme Court had not yet adopted the format of delivering an opinion. Instead, the justices delivered the decision ad seriatim, that is, one after the next, beginning with the junior member of the Court (Justice James Iredell) and concluding with the senior member of the court (Chief Justice John Jay.) Justice Thomas Johnson was absent for this case and resigned from the Court two months later. Four of the five participating justices declared that the Supreme Court had jurisdiction in the case and that Georgia owed Farquhar's estate the payment Chisholm had demanded. The majority determined that, under Article III and the intent of the framers, the Supreme Court not only had jurisdiction in the case but was required to hear suits brought against the states. Justice James Iredell dissented, believing that Article III gave Congress the power to grant sovereign immunity to the states from the jurisdiction of the federal courts, and without any Congressional directions one way or the other, the Supreme Court lacked jurisdiction. The majority ruled against Georgia, holding it in default for not appearing. Context: This was the first important case heard by the Court and it opened up a vigorous debate about the sovereignty of the states and the nature of the newly formed government of the United States. A literal reading of Article III, section 2, leaves little doubt but that the Supreme Court holds jurisdiction in disputes between a state and citizens of another state. But in the ratification debates defenders of the Constitution, known at the time as Federalists, had promised that the courts would never interpret this to mean that citizens of one state could actually sue another state. The only way this could happen is if a state agreed to the suit. With Chisholm, supporters of state sovereignty felt betrayed. They especially resented the words of Justices James Wilson, who declared in that sovereignty resided in the people of the United States and not in the state: "As to purposes of the Union, therefore, Georgia is not a sovereign state." For Wilson, and the Court's majority, the people had created a nation, and Article Three explicitly stated that its judicial power should extend over such controversies as Chisholm. By claiming that Georgia could be sued, the Court rejected the contention by the Anti-Federalists that states within the Union, were vested with the attributes of sovereignty relative to the federal government. Impact/Consequences: Public reaction to the Supreme Court's decision in Chisholm v. Georgia was explosive. Many feared that enemies of the American Revolution would use the courts to drain hard currency from the young republic. Others, including the editorial writers in leading newspapers, declared that this decision would allow the federal government to absorb state and local governments and create a new monarchy. John Hancock called a special session of the Massachusetts Legislature, which passed a resolution demanding that Congress amend the Constitution so that lawsuits against a state by citizens of a different state or foreign nation would be illegal. Two days after the decision in Chisholm was announced a resolution asking for such an amendment was introduced in the U.S. Senate. The draft amendment was approved by Congress and sent to the states on March 4, 1794. Ten months later, on January 5, 1795, with North Carolina's ratification, the three-fourths requirement was met. Oddly, President John Adams did not formally announce ratification until three years later, on January 8, 1798. (In 1922, the Supreme Court ruled that presidential action was not necessary for an amendment to become part of the Constitution, but instead becomes law the moment three-fourths of the states approve the amendment.) Chisholm v. Georgia, thus, is one of only three Supreme Court cases to date to have been overturned by constitutional amendment, in this case the Eleventh Amendment. (Two days after Adams announced the Eleventh Amendment, the Supreme Court overturned Chisholm with its decision in Hollingsworth v. Virginia.) Chisholm was subsequently joined by the Dred Scott decision, overturned by the Thirteenth Amendment, and the 1895 income tax case, Pollock v. Farmers Loan & Trust Co., overturned by the Sixteenth Amendment. The reaction of the public to Chisholm taught the Court a valuable lesson, namely that it is not a good idea to render decisions that conflict with a public opinion that is widespread and deeply felt. In subsequent Court decisions, especially during the long service of Chief Justice John Marshall, the Court kept these risks in mind. Although the Eleventh Amendment became part of the Constitution, subsequent judicial interpretations of this amendment allowed suits against state officers who allegedly violated the constitutional and civil rights of individuals. This pragmatic interpretation of the amendment occurred principally in the last half of the twentieth century, when public opinion turned decidedly against state sovereignty in some matters of privacy, civil rights, and individual freedoms. Quotes: "My conception of the Constitution is entirely different. I conceive, that all the Courts of the United States must receive ... all their authority, as to the manner of their proceeding, from the Legislature only ... If therefore, this Court is to be (as I consider it) the organ of the Constitution and the law, not of the Constitution only, in respect to the manner of its proceeding, we must receive our directions from the Legislature in this particular...."--Justice James Iredell, 1793 Chisholm v. Georgia dissent "Whoever considers, in a combined and comprehensive view, the general texture of the Constitution, will be satisfied, that the people of the United States intended to form themselves into a nation for national purposes. They instituted, for such purposes, a national Government, complete in all its parts, with powers Legislative, Executive and Judiciary; and, in all those powers, extending over the whole nation. Is it congruous, that, with regard to such purposes, any man or body of men, any person natural or artificial, should be permitted to claim successfully an entire exemption from the jurisdiction of the national Government? Would not such claims, crowned with success, be repugnant to our very existence as a nation? When so many trains of deduction, coming from different quarters, converge and unite, at last, in the same point; we may safely conclude, as the legitimate result of this Constitution, that the State of Georgia is amenable to the jurisdiction of this Court."--Justice James Wilson, 1793 Chisholm v. Georgia opinion "Let us now turn to the Constitution. The people therein declare, that their design in establishing it, comprehended six objects. 1st. To form a more perfect union. 2nd. To establish justice. 3rd. To ensure domestic tranquility. 4th. To provide for the common defence. 5th. To promote the general welfare. 6th. To secure the blessings of liberty to themselves and their posterity.... It may be asked, what is the precise sense and latitude in which the words 'to establish justice,' as here used, are to be understood? The answer to this question will result from the provisions made in the Constitution on this head. They are specified in the second section of the third article, where it is ordained, that the judicial power of the United States shall extend to ten descriptions of cases... The exception contended for, would contradict and do violence to the great and leading principles of a free and equal national government, one of the great objects of which is, to ensure justice to all: To the few against the many, as well as to the many against the few."--Chief Justice John Jay, 1793 Chisholm v. Georgia opinion "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution ... between a State and Citizens of another State...."--Article III, Section 2, Constitution of the United States "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens of Subjects of any Foreign State."--Amendment XI (Ratified February 7, 1795). Questions to Ponder:
Selected Bibliography: Eaton, Thomas A. and Michael Wells. Constitutional Remedies: A Reference Guide to the United States Constitution. (Westport, CT: Praeger Publishers, 2002.) Epstein, Lita. The Complete Idiot's Guide to: The Supreme Court. (Indianapolis, IN: Alpha Books, 2004.) Johnson, John W., ed. Historic U.S. Court Cases: An Encyclopedia. 2d ed. (New York: Routledge, 2001.) Gateway Links: |
| GA v. Brailsford
(1794)
Decided by a vote of 6 to 2. Conflict: (Article III, State Sovereignty; Federal Supremacy) Samuel Brailsford, a British subject and Loyalist during the American Revolution, had won a lower court judgment to recover property owned him by a Georgia citizen. After the Revolutionary War, Georgia passed a law permitting the confiscation of Loyalist property, which included debts owed to them. Georgia asked the Court to stop the recovery of what amounted to confiscated property. Justice James Iredell, in his capacity as circuit judge, denied Georgia's claim; the Court ruled that the federal Treaty of Paris, which ended the American Revolution and normalized relations with Great Britain--including the protection of Loyalist properties, had nullified Georgia's law. Opinion: At the time of Georgia v. Brailsford, the Supreme Court followed the English practice of delivering serial opinions, starting with the junior member of the Court. The resulting string of opinions, beginning with a dissent written by Justice Thomas Johnson, is the first reported decision of the Supreme Court. It also established the tradition of dissent that became one of the Court's most important hallmarks. The Court's majority granted Georgia an injunction barring Brailsford's recovery of the money in question until a special jury could hear the case. The Court then convened a special jury, instructing it in such a manner that made its decision for Brailsford a foregone conclusion. Context: One year earlier, in February 1793, the Supreme Court had provoked a national uproar with its decision in Chisholm v. Georgia. A 4-1 ruling concluded that the Supreme Court had jurisdiction to hear a lawsuit brought against Georgia by an individual of another state or country. Within two days the U.S. Senate introduced an amendment reversing the Court's opinion which was ratified in ten months as the Eleventh Amendment. The reaction to the Chisholm case was so intense that the Supreme Court did not dare to issue a writ to a federal marshal to enforce its judgment to collect money due Chisholm from Georgia. Given the political firestorm surrounding Chisholm and its inability to enforce its will, the Supreme Court was reluctant to rule against Georgia a second time. The injunction allowed the Court to delay a direct confrontation; the jury trial allowed the ruling against Georgia to come from a jury rather than from the Supreme Court directly. Impact/Consequences: This was the first case in which the Supreme Court established the principle that a jury has the right and duty to examine not only the facts of the case, but also the law. Justice John Jay's charge to the jury asserted that justice was the primary objective of the Supreme Court while also suggesting that state law could not conflict with a United States treaty, an early suggestion of federal supremacy. Quotes: "...provided a demonstration to me of these facts: that the Premier [Jay] aimed for a cultivation of Southern popularity; that the Professor [Wilson] knows not an iota of equity; that the North Carolinian [Iredell] repented of the first ebullitions of a warm temper; and that it will take a score of years to settle, with such a mixture of Judges, a regular course in Chancery."--Attorney General Edmund Randolph to James Madison, 1792, letter "It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt, you will pay that respect, which is due to the opinion of the court: For, as on the one hand, it is presumed, that juries are the best judges of facts; it is, on the other hand, presumbable, that the courts are the best judges of the law. But still both objects are lawfully, within your power of decision."--Chief Justice John Jay, 1794 Georgia v. Brailsford jury charge. Questions to Ponder:
Selected Bibliography: Bates, Ernest Sutherland. The Story of the Supreme Court. (Indianapolis, IN: Bobbs-Merrill Company, 1936.) Friedman, Leon and Fred Israel. The Justices of the Supreme Court: Their Lives and Major Opinions. Vol. 1. (New York: Chelsea House Publishers, 1997.) Schwartz, Bernard. A History of the Supreme Court. (New York: Oxford University Press, 1993.) Stern, Robert, Eugene Gressman, Stephen Shapiro and Kenneth Geller. Supreme Court Practice, 8th ed. (Washington, DC: BNA Books, 2002.) Gateway Links: |
| Fletcher v. Peck
(1810)
Decided by a vote of 7 to 0. Conflict: (Article I, Contract Clause; Federal Supremacy and Judicial Review) Following the American Revolution, Georgia claimed 35 million acres of land along the Yazoo River (most of modern Mississippi and Alabama.) On January 7, 1795, the Georgia legislature granted large tracts of Yazoo land to four land companies, including the Georgia Land Company, for the low price of 1 ½ cents per acre. Georgia voters were outraged when they learned that the land speculators had bribed all but one member of the legislature. On February 13, 1796, the new legislature revoked the land grants, taking back the land from the four companies and from individuals who had purchased land from those companies. Land speculators looked for a way to challenge the legislation. Since they could not sue Georgia in federal court (because of the Eleventh Amendment), or in Georgia state courts (due to legislative act), they created a rather circuitous test case. Robert Fletcher (of New Hampshire) agreed to buy 15,000 acres of land in 1803 from John Peck (of Massachusetts), who had acquired the land as part of the 1795 grant to the Georgia Land Company. Fletcher sued Peck for breach of contract in the Federal Circuit Court in Massachusetts. He demanded that Peck return the $30,000 he had paid for land that Peck did not own because of Georgia's invalidation of the original land grant. The case questioned the constitutionality of the Georgia law revoking the land grants as a violation of the Contract Clause of the Constitution. Opinion: Chief Justice John Marshall delivered the opinion of a unanimous Court declaring the 1796 Georgia legislature's rescinding act to be unconstitutional. Marshall did so for two reasons. First, he argued it was not within the power of the judiciary to inquire into the motives of the legislative branch, affirming separation of powers. Second, he declared that the 1795 grant was a contract, thus the 1796 rescinding act had violated the contract clause of the U.S. Constitution. Context: The original four companies purchased the Yazoo lands for $500,000. On the day the legislature repealed the 1795 grant, 11 million acres were sold for $1,138,000 at a profit of 650 percent. Total profits by Yazoo land speculators between 1794 and 1814 are estimated to be over $3,500,000. There was a great deal of money at stake in Fletcher v. Peck, along with a great deal of land. Although President James Madison and his Republican-Democrats who controlled Congress were unhappy with Federalist John Marshall's decision, they were divided about how to progress and the War of 1812 intervened. Finally, in 1814, Congress passed a bill to settle the Yazoo land claims and purchase title to the land. The U.S. government paid $4.2 million to landowners although the settlement of claims dragged on for decades. Impact/Consequences: This was the first case in which the Supreme Court declared a state law unconstitutional. It is also the first time the Court reviewed the contract clause of Article I, Section 10 of the Constitution, which declared, "No state shall ... pass any Bill of Attainder, ex post facto law, or Law impairing the Obligation of Contracts..." Standing at the threshold of the market revolution and the expansion of American capitalism, Fletcher v. Peck insured that property rights and contracts would be protected against the whims of politicians by the full power of the Constitution. Significantly, the opinion also hints at rights rooted "in general principles, which are common to our free institutions," even if not enumerated by the U.S. Constitution. The Marshall Court followed Fletcher with additional rulings that strictly limited the power of states to impair the obligation of contracts: Dartmouth College V. Woodward (1819) and Ogden v. Saunders (1827). Quotes: "That corruption should find its way into the governments of our infant republics, and contaminate the very source of legislation, or that impure motives should contribute to the passage of a law, or the formation of a legislative contract, are circumstances most deeply to be deplored. How far a court of justice would, in any case, be competent, on proceedings instituted by the state itself, to vacate a contract thus formed, and to annul rights required, under that contract, by third persons having no notice of the improper means by which it was obtained, is a question which the court would approach with much circumspection. It may well be doubted how far the validity of a law depends upon the motives of its framers, and how far the particular inducements, operating on members of the supreme sovereign power of a state, to the formation of a contract by that power, are examinable in a court of justice. If the principle be conceded, that an act of the supreme sovereign power might be declared null by a court, in consequence of the means which procured it, still would there be much difficulty in saying to what extent those means much be applied to produce this effect. Must it be direct corruption, or would interest or undue influence of any kind be sufficient? Must the vitiating cause operate on a majority, or on what number of the members? Would the act be null, whatever might be the wish of the nation, or would its obligation or nullity depend upon the public sentiment?" Chief Justice John Marshall, 1810 Fletcher v. Peck opinion "This estate was transferrable; and those who purchased parts of it were not stained by that guilt which infected the original transaction. Their case is not distinguishable from the ordinary case of purchasers of a legal estate without knowledge of any secret fraud, which might have led to the emanation of the original grant. According to the well known course of equity, their rights could not be affected by such fraud. Their situation was the same, their title was the same, with that of every other member of the community who holds land by regular conveyances from the original patentee." Chief Justice John Marshall, 1810 Fletcher v. Peck opinion "It is, then, the unanimous opinion of the court, that, in this case, the estate having passed into the hands of a purchaser for a valuable consideration, without notice, the state of Georgia was restrained, either by general principles which are common to our free institutions, or by the particular provisions of the constitution of the United States, from passing a law whereby the estate of the plaintiff in the premises so purchased could be constitutionally and legally impaired and rendered null and void." Chief Justice John Marshall, 1810 Fletcher v. Peck opinion "I have been very unwilling to proceed to the decision of this cause at all. It appears to me to bear strong evidence, upon the face of it, of being a mere feigned case. It is our duty to decide on the rights, but not on the speculations of parties. My confidence, however, in the respectable gentlemen who have been engaged for the parties, has induced me to abandon my scruples, in the belief that they would never consent to impose a mere feigned case upon this court." Justice William Johnson, Jr., 1810 Fletcher v. Peck concurring opinion Questions to Ponder:
Selected Bibliography: Johnson, John W., ed. Historic U.S. Court Cases: An Encyclopedia. 2d ed. (New York: Routledge, 2001.) Newmyer, R. Kent. John Marshall and the Heroic Age of the Supreme Court. (Baton Rouge, LA: Louisiana State University Press, 2001.) Smith, Jean Edward. John Marshall: Definer of a Nation. (New York: Henry Holt and Company, 1996.) Gateway Links: |
| U.S. v. Hudson/Goodwin
(1812)
Decided by a vote of 6 to 0. Conflict: On May 7, 1806, the Connecticut Currant published allegations by Barzillai Hudson and George Goodwin that President Jefferson and the Congress had secretly voted $2,000,000 to bribe Napoleon Bonaparte so the United States could make a treaty with Spain. The co-defendants were indicted in federal Circuit Court of Connecticut for common law "seditious libel". The Circuit Court was divided on whether it had common law jurisdiction in the case, so it went to the Supreme Court to resolve the issue. Both the United States Attorney General William Pinkney and the defendants' attorney declined to present arguments to the Court. Opinion: Justice William Johnson, Jr. delivered the opinion of a unanimous Supreme Court; Justice Bushrod Washington was absent. The Court ruled that the Circuit Court could not exercise common law jurisdiction in criminal cases such as libel because that power was not delegated under Article III of the Constitution and Congress had passed no act conferring that power to the Circuit Court. This opinion denied the existence of a federal common law of crimes. It asserted, instead, the legal theory that all federal crimes heard in federal courts had to be based on specific statutes rather than judicially discovered in the unwritten common law of the land. Context: In Hudson and Goodwin, the long-standing dispute between Jeffersonian-Republicans and Federalists came to a head over the issue of the Court's jurisdiction in matters of common-law crimes. Up to this time, federal courts had commonly upheld common-law convictions by the lower courts in cases involving crimes against the nation or against federal authorities, such as a violation of treaties or bribing a federal judge or customs officer, or in crimes "subversive of the national government." Crimes prosecuted by the federal courts included seditious libel, participation in the Whiskey Tax Rebellion of 1794, treason, etc. This flew in the face of the Jeffersonian-Republican contention that such oversight exceeded the Court's authority. Jeffersonian-Republicans held that federal courts had no constitutional authority to enforce or create common law crimes, and that such offenses should be tried in the state courts in which the crimes had occurred. This theory held that only the states could administer common law, and that no general common law existed. This difference over the power of the federal courts in common law crime reflected the deep division between the two parties over fundamental principles. The Jeffersonian-Republicans insisted that no branch of government had any power not explicitly granted by the Constitution. The Federalists believed that the Constitution granted implied powers to Congress, the Courts, and the Executive branch to carry out explicitly granted powers. Crime, which fell to the states to handle under the police power of the states, fell out of sight in that it was not specifically identified as within the jurisdiction of the federal courts. Nor was it specifically ruled out, especially in cases when the crime, such as in Hudson and Goodwin, involved actions committed against a federal officer or the nation. The problem stemmed from the fact that neither Congress nor the Constitution had clearly and explicitly articulated the definition of a common-law crime. This dispute, moreover, must be seen in the context of the nation's division of foreign affairs in the late 1790s. In 1797 and 1798, the new nation came close to going to war with France due to French reactions (seizing American merchant vessels that carried British goods) to the Jay Treaty with England. The crisis reached a fever pitch when French officials demanded bribes from American officials, including John Marshall, sent to France to broker a settlement. With the publication of this scandal, known as the XYZ Affair, the Federalists tried to prepare the nation for war by pushing through Congress legislation punishing American citizens for any scandalous and malicious criticisms of American officials. The Jeffersonian-Republicans countered that such legislation was unconstitutional. The Federalists argued that the Sedition Act, which was passed in 1798, addressed a common-law crime that fell within the jurisdiction of the federal courts, on the one hand, and reflected, on the other, the Constitution's "necessary and proper" clause, which empowered Congress to pass laws aimed at protecting the federal government. Jeffersonian-Republicans feared that the Federalist argument in favor of a federal common law of crimes implied that the federal courts had a common-law jurisdiction over all human affairs. If this were allowed to stand, the legislative authority of Congress and the judicial authority of the Supreme Court would incorporate all state authority into the federal government. In the words of James Madison, the doctrine of a federal common law was especially dangerous because it greatly empowered the federal legislative branch over the states: "Congress would therefore be no longer under the limitations, marked out in the constitution. They would be authorized to legislate in all cases whatsoever." Madison and his Jeffersonian supporters also argued that a national common law "would confer on the judicial department a discretion little short of legislative power." By this he meant that the federal judiciary would be empowered to "decide what parts of the common law would, and what would not, be properly applicable to the circumstances of the United States." This would make federal judges into legislators, in Madison's mind. With the ascension of Thomas Jefferson to the presidency, the tide turned in favor of the Jeffersonian perspective. As president, for example, he instructed his attorney general not to prosecute alleged insults to the Spanish government and desecration of the Spanish flag because no statute recognized the offense as a crime Impact/Consequences: Hudson ended the practice of federal courts asserting jurisdiction over offences made criminal under English common law, such as libel, overturning both lower court precedents and accepted wisdom in doing so. It is a landmark case because it required that federal criminal law be formulated in statutes passed by the legislative branch, following constitutional principle, rather than emerge from judicial decisions (like English common law) based in a general sense about the common law of crimes. Additionally, the opinion protected judicial powers reserved to the states from encroachment by judicially-created crimes. Although Chief Justice John Marshall had written in a letter to St. George Tucker in 1800 that the Constitution did not any grant of "jurisdiction in cases at common law," and written in Ex parte Bollman that jurisdiction of federal courts was not regulated by common law, but "written law," it is unclear where he stood in Hudson; however, he did not write a dissent. Quotes: "The legislative authority of the Union must first make an act a crime, affix a punishment to it, and declare the Court that shall have jurisdiction of the offence. Certain implied powers must necessarily result to our Courts of justice from the nature of their institution. But jurisdiction of crimes against the state is not among those powers. To fine for contempt-imprison for contumacy-enforce the observance of order, &c. are powers which cannot be dispensed with in a Court, because they are necessary to the exercise of all others: and so far our Courts no doubt possess powers not immediately derived from statute; but all exercise of criminal jurisdiction in common law cases we are of opinion is not within their implied powers."--Justice William Johnson, Jr., 1812 United States v. Hudson and Goodwin opinion "The nature of the [common law] of England makes it impossible that it should have been adopted in the lump into such a Government as this is; because it was a complete system for the management of all the affairs of a country. It regulated estate, punished all crimes, and, in short, went to all things for which laws are necessary."--Representative Wilson Cary Nicholas, 1798, Congressional Report on the Alien and Sedition Acts. "Whenever an offense aims at the subversion of any Federal institution, or at the corruption of its public officers, it is an offense against the well-being of the United States; from its very nature, it is congnizable under their authority; and, consequently within the jurisdiction of the [federal] court, by virtue of the 11th section of the judicial act."--District Judge Richard Peters, in United States v. Worrall (Pa Circuit Court, 1798). Questions to Ponder:
Selected Bibliography: Johnson, Herbert A. The Chief Justiceship of John Marshall, 1801-1835. (Columbia, SC: University of South Carolina Press, 1997.) Levy, Leonard W. Jefferson and Civil Liberties: The Darker Side. (Cambridge, MA: Harvard University Press, 1963.) Rowe, Gary D. "The Sound of Silence: United States v. Hudson & Goodwin, the Jeffersonian Ascendancy and the Abolition of the Federal Common Law of Crimes," 101 Yale Law Journal 919. Smith, Jean Edward. John Marshall: Definer of a Nation. (New York: Henry Holt and Company, 1996.) Urofsky, Melvin, and Paul Finkelman, eds. Documents of American Constitutional and Legal History. (New York: Oxford University Press, 2002.) Gateway Links: |
| Martin v. Hunter Lessee
(1816)
Decided by a vote of 6 to 0. Conflict: (Article III, Judicial Review; Article VI, Supremacy Clause) Prior to the American Revolution, Thomas Lord Fairfax received 5.2 million acres of land grants in Virginia. During the Revolutionary War, the Virginia legislature seized Loyalists' lands (including those of Lord Fairfax) and subsequently granted patriots (who had served in the war for independence) acreage in honor of their service. One such patriot was David Hunter, who received 800 acres from the old Fairfax grant. Lord Fairfax heirs sued to reclaim the lands, arguing rightful ownership under the terms of the Treaty of Paris (1783), which ended the Revolutionary War, and Jay's Treaty (1795). The case came to the Supreme Court in 1813 (Fairfax Devisee v. Hunter's Lessee), which overturned the Virginia Court of Appeals ruling in favor of Hunter. The Virginia Court of Appeals then refused to obey the Court's decision, and it denied that the Supreme Court had any jurisdiction in the case, claiming that Section 25 of the Judiciary Act of 1789 was unconstitutional. Virginia's stance of defiance brought the case back to the Supreme Court as Martin v. Hunter's Lessee in 1816. Opinion: Justice Joseph Story delivered the Court's opinion; Chief Justice John Marshall recused himself from the case due to conflict of interest (he had invested in Fairfax lands and his brother, James, owned property involved in the litigation). Justice Story asserted that Section 25 of the Judiciary Act of 1789, granted the Supreme Court jurisdiction to review state supreme court decisions that invalidated federal statutes or treaties. The Constitution's grant of concurrent jurisdiction in specified cases did not strip the Supreme Court of its appellate jurisdiction. Story verbally castigated the Virginia court for challenging the Supreme Court's earlier decision. Context: The denial of Lord Fairfax's claims by the Virginia court challenged the constitutionality of the Judiciary Act of 1789, especially section 25. Critics argued that the 1789-law bestowed unconstitutional authority on the federal judiciary. Such federal authority, it was believed, threatened to usurp state power. This perspective believed that the United States was a compact among the states, one in which only limited and enumerated powers were granted to the central government. Virginia most likely saw the Supreme Court's position as part of a Federalist scheme against the state's sovereignty, designed to make the state and its court merely a cog in the national machine. Impact/Consequences: The Supreme Court vigorously and indignantly asserted its appellate jurisdiction over state courts in this case. In doing so, it further advanced the supremacy of the Constitution and insured that there would be uniformity in the American system of law, rather than a patchwork of state interpretations. Story rejected the theory of state sovereignty and the compact interpretation of the government, insisting that the ultimate source of interpreting the Constitution rested with the Supreme Court to avoid governmental chaos and the collapse of the Union. He also indicated that the national government was endowed by the Constitution with certain "implied powers" necessary to effectively carrying out its various charges. Chief Justice John Marshall clearly articulated the implied powers doctrine three years later in McCulloch, v. Maryland (1819). Quotes: "Sec. 25. That a final judgment or decree in any suit, in the highest court of law or equity of a State in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under, any State, on the ground of their being repugnant to the constitution, treaties, or laws of the United States, and the decision is in favour of such their validity, or where is drawn in question the construction of any clause of the constitution, or of a treaty, or statute of, or commission held under, the United States, and the decision is against the title, right, privilege, or exemption, specially set up or claimed by either party, under such clause of the said Constitution, treaty, statute, or commission, may be re-examined, and reversed or affirmed in the Supreme Court of the United States..."--An Act to establish the Judicial Courts of the United States, 1789 "On the whole, the court are of opinion, that the appellate power of the United States does extend to cases pending in the state courts; and that the 25th section of the judiciary act, which authorizes the exercise of this jurisdiction in the specified cases, by a writ of error, is supported by the letter and spirit of the constitution. We find no clause in that instrument which limits this power; and we dare not interpose a limitation where the people have not been disposed to create one." --Justice Joseph Story, 1816 Martin v. Hunter's Lessee opinion "This is assuming a truly alarming latitude of judicial power. Where is it to end? It is an acknowledged principle of, I believe, every court in the world, that not only the decisions, but every thing done under the judicial process of courts, not having jurisdiction, are, ipso facto, void. Are, then, the judgments of this court to be reviewed in every court of the union? and is every recovery of money, every change of property, that has taken place under our process, to be considered as null, void, and tortious? We pretend not to more infallibility than other courts composed of the same frail materials which compose this...But there is one claim which we can with confidence assert in our own name upon those tribunals-the profound, uniform, and unaffected respect which this court has always exhibited for state decisions, give us strong pretensions to judicial comity. And another claim I may assert, in the name of the American people; in this court, every state in the union is represented; we are constituted by the voice of the union, and when decisions take place, which nothing but a spirit to give ground and harmonize can reconcile, ours is the superior claim upon the comity of the state tribunals."--Justice William Johnson, Jr., 1816 Martin v. Hunter's Lessee concurring opinion Questions to Ponder:
Selected Bibliography: Miller, F. Thornton. Juries and Judges versus the Law: Virginia's Provincial Legal Perspective, 1783-1828. (Charlottesville, VA: University Press of Virginia, 1994.) Newmyer, R. Kent. Supreme Court Justice Joseph Story: Statesman of the Old Republic. (Chapel Hill, NC: University of North Carolina Press, 1985.) Smith, Jean Edward. John Marshall: Definer of a Nation. (New York: Henry Holt and Company, 1996.) Urofsky, Melvin and Paul Finkelman. A March of Liberty: A Constitutional History of the United States. (New York: Oxford University Press, 2002.) Gateway Links: |
| Dartmouth College v. Woodward
(1819)
Decided by a vote of 5 to 1. Conflict: On December 13, 1769, Dartmouth College of Hanover, New Hampshire received its royal charter to educate the "youth of the Indian tribes in this land ... and also English youth and any other" young men in the colony. On June 27, 1816, the New Hampshire state legislature, dominated by Democratic-Republicans, changed Dartmouth's charter without the consent of the college. Immediately, the governor of New Hampshire appointed a new board of trustees and began to transform Dartmouth from a privately funded school to a state university. On February 8, 1817, the old board of trustees sued William H. Woodward, the secretary of Dartmouth, to recover the seal, charter, and other documents necessary to operate the college. They argued that the New Hampshire legislature had unconstitutionally interfered with the charter, which was, they claimed, a contract. The Superior Court of New Hampshire upheld the act of the legislature. The state court reasoned that because the government had chartered the school with a public interest in mind, the charter was not a private contract. The old board of trustees appealed to the United States Supreme Court, represented by attorneys including alumni Daniel Webster. Opinion: Chief Justice John Marshall delivered the opinion at the opening of the new Court term, the first case to be announced in the "Old Supreme Court Chambers" in the basement of the Capitol since the British burned it in 1814. Marshall found for Dartmouth College, stating that it was a private institution with a charter that constituted a contract between the college and the state as the successor to the colonial government that had issued the original charter. Marshall used his opinion to further reinforce the sanctity of contracts under Article I, Section 10 of the U.S. Constitution, expanding protection to charters of private corporations (as Fletcher v. Peck and Martin v. Hunter's Lessee had expanded protection to land grants.) The Chief Justice's opinion was the only one read in the Court that day, although Justices Joseph Story, Bushrod Washington, and William Johnson wrote concurring opinions. Justice Thomas Todd was absent and did not participate. The lone dissenter was Justice Gabriel Duvall, who did not write an explanatory opinion. . Context: Samson Occum, a Mohegan scholar and preacher trained by Reverend Eleazar Wheelock, attracted so many donors, including substantial funds from the Earl of Dartmouth during a fund-raising visit to Great Britain, that the royal governor of New Hampshire issued a charter to create a school for the instruction of Native American students and other colonial youths. Eleazar Wheelock served as president of Dartmouth College until his death in 1807. His son, John Wheelock, succeeded him. Much of the dispute between the new board of trustees and the old board had to do with the changed political climate of the day. Jeffersonian Republicans believed that education should serve the interests of the people as expressed in laws passed by state legislators, who were popularly elected. Dartmouth College's governing procedures appeared to many as a holdover of the old Federalist hierarchy, which seemed beyond the control of the people. The College's internal governing procedures enabled the old board to be a self-perpetuating group. Seen in this context, the decision to remove Dartmouth's royal charter was aimed at eliminating the influence of perhaps the last vestiges of Federalist power in the state. By making Dartmouth into a public rather than a private institution, the legislator believed that they were striking a blow for democracy in battle with property-holding elites. Impact/Consequences: Chief Justice John Marshall believed in the protecting the constitutional right of private property by enforcing the sanctity of contracts. He used Dartmouth College v. Woodward to expand the authority and power of the Constitution's Contract Clause to private corporations, and by extension to business corporations. In declaring that private corporations could not be meddled with by the states that had chartered them, Marshall helped 19th century America's fledgling businesses and industries to grow. This helped clear the way for private businesses and subsequent corporations to operate relatively free of state-imposed constraints. And the principle was amazingly broad. By vesting a corporation with constitutionally protected rights of contract, Marshall's ruling endowed the corporation with basic legal rights even against the government agency or authority that had created it. Later in the century, the Supreme Court would further this endowment by holding that corporations were legally persons protected by the Due Process Clause of the Fourteenth Amendment. The decision also had an impact on fostering private educational institutions and charities. As the case was being considered, a remarkable number of schools sent observers to Washington, DC. Justices Johnson and Story each received honorary degrees from both Princeton and Harvard. This decision helped private colleges, endowed by wealthy donors and largely closed to the common people, to continue to flourish in the United States. Private charitable institutions, too, continued to thrive to this day--ranging from the American Red Cross to the Salvation Army USA. This opinion removed from democratic control those business entities formed for the specific purpose of making a profit. In time, as concentrations of corporate wealth grew to gigantic size in the industrial era, Marshall's decision made it nearly impossible for these business organizations to be regulated in the public interest. Without government oversight, many corporations abused their privilege at enormous cost to their competitors, employees, consumers, and taxpayers. Quotes: "KNOW YE, THEREFORE, that We, ... being willing to encourage the laudable and charitable design of spreading Christian knowledge among the savages of our American wilderness, ... do, ... will, ordain, grant and constitute, that there be a college erected in our said province of New Hampshire, by the name of Dartmouth College, for the education and instruction of youth of the Indian tribes in this land, in reading, writing and all parts of learning, which shall appear necessary and expedient, for civilizing and christianizing children of pagans, as well as in all liberal arts and sciences, and also of English youth and any others. And the trustees of said college may and shall be one body corporate and politic, in deed, action and name, and shall be called, named and distinguished by the name of the Trustees of Dartmouth College."--John Wentworth, Royal Governor of New Hampshire on behalf of King George III, December 13, 1769, Dartmouth College Royal Charter "The charter recites, that the founder, on his part, has agreed to establish his seminary in New Hampshire, and to enlarge it, beyond its original design, among other things, for the benefit of that province; and thereupon, a charter is given to him and his associates, designated by himself, promising and assuring to them, under the plighted faith of the state, the right of governing the college, and administering its concerns, in the manner provided in the charter. There is a complete and perfect grant to them of all the power of superintendence, visitation and government. Is not this a contract?" Daniel Webster, attorney for Dartmouth College, March 10-12, 1818, Dartmouth College v. Woodward oral arguments "The education of youth, and the encouragement of the arts and sciences, is one of the most important objects of civil government ... this charter is merely a mode of exercising one of the great powers of civil government. Its amendment, or even repeal, can no more be considered as the breach of a contract, than the amendment or repeal of any other law."--John Holmes, attorney for Woodward, March 10-12, 1818, Dartmouth College v. Woodward oral arguments "Whence, then, can be derived the idea, that Dartmouth College has become a public institution, and its trustees public officers, exercising powers conferred by the public for public objects? Not from the source whence its funds were drawn; for its foundation is purely private ... not from the application of those funds; for money may be given for education, and the persons receiving it do not, by being employed in the education of youth, become members of the civil government ... It is probable, that no man ever was, and that no man ever will be, the founder of a college, believing at the time, that an act of incorporation constitutes no security for the institution; believing, that it is immediately to be deemed a public institution, whose funds are to be governed and applied, not by the will of the donor, but by the will of the legislature."--Chief Justice John Marshall, 1819, Dartmouth College v. Woodward opinion "A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it, either expressly, or as incidental to its very existence. These are such as are supposed best calculated to effect the object for which it was created. Among the most important are immortality, and, if the expression may be allowed, individuality; properties, by which a perpetual succession of many persons are considered as the same, and may act as a single individual. They enable a corporation to manage its own affairs, and to hold property...By these means, a perpetual succession of individuals are capable of acting for the promotion of the particular object, like one immortal being. But this being does not share in the civil government of the country, unless that be the purpose for which it was created."--Chief Justice John Marshall, 1819, Dartmouth College v. Woodward opinion Questions to Ponder:
Selected Bibliography: Bowman, R. Scott. The Modern Corporation and American Political Thought: Law, Power, and Ideology. (University Park, PA: The Pennsylvania State University Press, 1996.) Friedman, Lawrence and Mark D. MacGarvie. Charity, Philanthropy, and Civility in American History. (Cambridge: Cambridge University Press, 2003.) Johnson, Timothy R. Oral Arguments and Decisionmaking on the United States Supreme Court. (Albany, NY: State University of New York Press, 2004.) Stites, Francis S. Private Interest and Public Gain: The Dartmouth College Case, 1819. (Amherst, MA: University of Massachusetts Press, 1972.) Newmyer, R. Kent. John Marshall and the Heroic Age of the Supreme Court. (Baton Rouge, LA: Louisiana State University Press, 2001.) Newmyer, R. Kent. Supreme Court Justice Joseph Story: Statesman of the Old Republic. (Chapel Hill, NC: University of North Carolina Press, 1985.) Smith, Jean Edward. John Marshall: Definer of a Nation. (New York: Henry Holt and Company, 1996.) Urofsky, Melvin and Paul Finkelman. A March of Liberty: A Constitutional History of the United States. (New York: Oxford University Press, 2002.) Gateway Links: |
| McCulloch v. MD
(1819)
Decided by a vote of 7 to 0.
Conflict: On February 11, 1818, the Maryland legislature passed an act taxing all banks that had not been chartered by Maryland. The act targeted the only bank in the state, which fit the description, the Baltimore branch of the Second Bank of the United States whose charter had been granted by Congress in 1816. When Maryland presented a tax bill for $15,000 to bank cashier James W. McCulloch, he refused to pay. He was taken to court, convicted of violating Maryland's tax law, and fined $2,500. McCulloch turned to the Maryland Court of Appeals, which upheld his conviction. James McCulloch then appealed to the United States Supreme Court. Opinion: Chief Justice John Marshall delivered the opinion of a unanimous Supreme Court. He affirmed that the U.S. Congress had the power to charter a bank. Marshall gave three reasons: 1) The Constitution is a social contract with the people of the United States, thus the supreme law; 2) Congress is bound by the Constitution to act and had the implied right to establish a bank; and 3) Under Article I, Section 8, clause 18 (the Necessary and Proper, or Elastic, Clause), Congress may enact laws unless they are prohibited by the Constitution so long as they are rationally related to an objective, such as creating a bank as part of national economic policy. Marshall further ruled that a state act that attacked federal supremacy, such as Maryland's tax on the bank, was unconstitutional and void. Context: In the years following the War of 1812, the Federalist Party essentially disappeared as a national political party, leaving the Democratic-Republicans in nearly complete control of the government. During this so-called "Era of Good Feelings," American leaders came to agree on issues over which they had been divided for 25 years, including the Bank of the United States. Having defeated the renewal of the original Bank's charter in 1811, Democratic-Republicans struggled to pay for the costs of the war of 1812 with England, and they belatedly realized the value of a national bank in such a national crisis. Thus, in 1816, Congress approved a 20-year charter for the Second Bank of the United States. With $35,000,000 in capital plus deposits made by both the U.S. government and individuals, it was the wealthiest bank in the country. Headquartered in Philadelphia, it had 26 branches nationwide. The U. S. Bank had tremendous power over the national economy for several reasons: (1). Private banks and state-chartered banks printed notes that circulated as currency when they made loans to borrowers. These notes were supposed to be redeemable in specie (gold, silver, British pounds, Spanish dollars, etc.), but most banks issued more notes than they had specie reserves, assuming that not all notes would come in for redemption at the same time. Holders of these private bank notes usually exchanged them for U. S. bank notes; as a result the Bank of the U.S. held large amounts of these private note and could redeem them all at once and bankrupt any bank in the nation that had over extended itself. (2). Because federal funds (receipts from tariffs, taxes, and land sales) were deposited in the U. S. Bank, it had a tremendous competitive advantage over other banks in attracting deposits and customers seeking loans. (3). It could offer loans at much lower, or higher, interest rates or dump its holdings of private bank notes into the economy, with no control over its policies exercised by any elected official. As a result, private and state banks resented the U. S. Bank's ability in theory to demand "hard money," felt that some branch operators were corrupt, and feared the Bank's size and competitiveness. States were nervous, too, about the financial clout of the federal government. And many average citizens, who hated all banks and the power that banks had over their lives, especially resented the Bank of the United States as an anti-democratic, evil institution. For many years, the Bank's ability to demand payment in specie had helped prevent local banks from printing worthless notes. This meant, however, that people buying western land had difficulty getting cash for loans. After the War of 1812, many people wanted to buy land in the South and West, especially to plant cotton. There was a huge demand for money and land, and prices rose. During this land frenzy, the Second Bank of the U.S. failed to demand specie payments, so many private and state banks overextended themselves by making unwise loans and printing more notes than they could back with "hard money." Some western branches of the Bank of the U.S. itself also printed too much money and made less than safe loans. While this "cheap-money" or "soft money" approach of just printing cash not backed by specie was popular with farmers, debtors, and land speculators, it helped fuel inflation, which worried creditors fearful of being paid back in money worth less than they had loaned out.. In 1818, to prevent financial collapse due to the over-expansion of the economy, the Second Bank of the United States cut back on printing money and making loans, and then began to call in the notes of private banks, demanding payment in gold and silver. The Bank had saved itself from financial hardship, but many private and state banks were ruined. To meet the Bank's demands, these smaller banks scrambled for money calling in every loan they could. Many indebted and over-extended farmers found themselves unable to pay their bank loans, and tens of thousands of small farmers lost their lands and savings as the nation's economy plunged into a state of economic depression. The banking industry nearly collapsed in the Panic of 1819, and only the most conservative banks managed to ride out the crisis. Nearly everyone blamed the Bank of the United States for the crisis. Senator Thomas Hart Benton of Missouri nicknamed the Second Bank of the U.S., "The Monster," a feeling shared by the vast majority of Americans. By 1818, the Bank was so hated that private and state banks went on the attack. Responding to popular demand, across the nation, state legislatures (including Maryland) enacted laws to restrict the Bank. Impact/Consequences: The scope and breadth of Chief Justice John Marshall's opinion in McCulloch v. Maryland make it one of the most important cases, if not the most important decision, pronounced in the history of the United States Supreme Court. Marshall probed the formation and nature the Union, the balance of state sovereignty and national power in a federal republic, and principles for interpreting the Constitution. At the time the opinion was reviled in newspapers because it sustained the Bank of the United States and because sectionalism and support for the doctrine of states rights were increasing. Criticism was so intense by Spencer Roane, writing as "Amphictyon," that Chief Justice Marshall anonymously published responses under the signature "A Friend to the Union." McCulloch emphatically states that the Constitution derives its authority from the social contract, the will of "We, the People" expressed in the ratification process. That authority gives the Constitution supremacy over state constitutions and laws. Marshall's opinion continued to consolidate, in a legal sense, the alliance of "united states" into the federal union of the "United States of America." Judicial nationalism increased at the same time as sectionalism increased, which ultimately plunged the nation into the Civil War. When Lincoln faced the great national crisis of Civil War, he had Marshall's body of opinions serving as a legal bulwark to sustain the Union. (In the wake of the Civil War, average Americans finally appreciated John Marshall's nationalist opinions, if belatedly.) In McCulloch, Marshall discussed the differences between "strict construction"--a literal reading of the Constitution--and "loose construction"--which allows justices to infer meaning through reason and logic beyond the actual words. He then offered a Hamiltonian "loose construction" of Article I, Section 8, clause 18, the Necessary and Proper Clause, saying that it granted Congress great flexibility to carry out its constitutional duties. In doing so, Marshall transformed a vague constitutional phrase into the immensely powerful Elastic Clause. The men who drafted the Constitution in 1787 no doubt would have been astonished that this phrase would enable Congress to support the construction of the transcontinental railroad, Tennessee Valley Authority, and NASA--as well as establish the Federal Reserve System, the successor to the Bank of the United States. Perhaps Marshall would be amazed as well, but it was his vision, described in McCulloch v. Maryland, which made it all constitutionally possible. Quotes: "The Congress shall have power: 18. To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."--The United States Constitution, Article I, Section 8, 1787 "Nothing can be plainer than that, if the law of congress, establishing the bank, be a constitutional act, it must have its full and complete effects. Its operation cannot be either defeated or impeded by acts of state legislation. To hold otherwise, would be to declare, that congress can only exercise its constitutional powers, subject to the controlling discretion, and under the sufferance, of the state governments."--Daniel Webster, attorney for James W. McCulloch, 1819 McCulloch v. Maryland, oral arguments "It is insisted, that the constitution was formed and adopted, not by the people of the United States at large, but by the people of the respective states. To suppose, that the mere proposition of this fundamental law threw the American people into one aggregate mass, would be to assume what the instrument itself does not profess to establish. It is, therefore, a compact between the states, and all the powers which are not expressly relinquished by it, are reserved to the states."--Walter Jones, attorney for Maryland, 1819, McCulloch v. Maryland oral arguments "To the formation of a league, such as was the confederation, the state sovereignties were certainly competent. But when, 'in order to form a more perfect union,' it was deemed necessary to change this alliance into an effective government, possessing great and sovereign powers, and acting directly on the people, the necessity of referring it to the people, and of deriving its powers directly from them, was felt and acknowledged by all. The government of the Union, then ... is, emphatically and truly, a government of the people. In form, and in substance, it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit."--Chief Justice John Marshall, 1819, McCulloch v. Maryland opinion "The government of the United States, then, though limited in its powers, is supreme; and its laws, when made in pursuance of the constitution, form the supreme law of the land, 'anything in the constitution or laws of any state to the contrary notwithstanding.'"--Chief Justice John Marshall, 1819, McCulloch v. Maryland opinion "We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transcended. But we think the sound construction of the constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional."--Chief Justice John Marshall, 1819, McCulloch v. Maryland opinion "That the power to tax involves the power to destroy; that the power to destroy may defeat and render useless the power to create... the states have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by congress to carry into execution the powers vested in the general government. This is, we think, the unavoidable consequence of that supremacy which the constitution has declared. We are unanimously of opinion, that the law passed by the legislature of Maryland, imposing a tax on the Bank of the United States, is unconstitutional and void."--Chief Justice John Marshall, 1819, McCulloch v. Maryland opinion Questions to Ponder:
Selected Bibliography: Gunther, Gerald, ed. John Marshall's Defense of McCulloch v. Maryland. (Stanford, CA: Stanford University Press, 1969.) Johnson, Herbert A. The Chief Justiceship of John Marshall, 1801-1835. (Columbia, SC: University of South Carolina Press, 1997.) Newmyer, R. Kent. John Marshall and the Heroic Age of the Supreme Court. (Baton Rouge, LA: Louisiana State University Press, 2001.) Rimini, Robert V. Daniel Webster: The Man and His Time. (New York: W.W. Norton & Co., Inc., 1997.) Smith, Jean Edward. John Marshall: Definer of a Nation. (New York: Henry Holt and Company, 1996.) Urofsky, Melvin and Paul Finkelman. A March of Liberty: A Constitutional History of the United States. (New York: Oxford University Press, 2002.) Gateway Links: |
| Gibbons v. Ogden
(1824)
Decided by a vote of 7 to 0. Conflict: In 1808, the New York State legislature granted a 30-year monopoly to operate steamships in New York waterways to Robert Fulton (inventor of the steamboat Clermont) and Robert Livingston; they licensed Aaron Ogden (formerly a U.S. Senator and Governor of New Jersey) to operate their business. Thomas Gibbons, Ogden's former business partner, applied for and received a ferry license under the Federal Coasting Act of 1793. Gibbons then began to run his steamboats, the Stoudinger and Bellona between New Jersey and New York, without permission from New York. Ogden obtained a New York court injunction to stop Gibbons from operating his steamboats. Gibbons appealed to the Supreme Court, hiring Daniel Webster and Attorney General William Wirt to argue his case. He left $40,000 in his will to carry on the fight if he died, and he even challenged Ogden to a duel. (Ogden sensibly refused, sued Gibbons for trespassing on his property, and received a $5,000 judgment.) Opinion: Chief Justice John Marshall delivered the opinion of a unanimous Supreme Court. He struck down the New York legislature's monopoly grant and broadly interpreted the nature and scope of Congressional power under the Constitution's Commerce Clause. He held that Gibbon's federal license nullified New York's grant of monopoly to Fulton/Livingston/Ogden. He rejected the idea that commerce was merely "traffic" or exchange, but considered it broadly to include all forms of business activity. While states had the right to regulate trade within state borders, the Constitution had enumerated the power of Congress to regulate interstate and foreign commerce and states could not interfere with authority derived from the supreme law of the land. Context: Around 1793, inventor Robert Fulton began to think of adapting the steam engine to propel boats. Robert Livingston (member of the committee which drafted the Declaration of Independence and a diplomat who helped negotiate the Louisiana Purchase) was also tinkering with the idea of a steamboat, and had succeeded in convincing the New York legislature to grant him a 20-year monopoly for operating a vessel that would travel at four miles per hour. In 1803, Fulton and Livingston met in France and built a boat, which sank. They improved their prototype and returned to the United States. On August 17, 1807, Fulton's steamboat Clermont embarked up the Hudson River for Albany, New York. The trip took 32 hours (meeting the legislature's four mile-per-hour requirement) and created a revolution in transportation. Soon the rivers, coasts, lakes, and bays of the nation were filled with steamboats. New York awarded Fulton and Livingston their monopoly, but the neighboring states of New Jersey and Connecticut retaliated by awarding their own monopolies. Because many state boundaries were defined by water, this created competing monopolies between the states. Impact/Consequences: Gibbons v. Ogden, like Dartmouth College v. Woodward, took place at a critical juncture in the economic life of the republic. At a time of increasing industrialization and business activity, this opinion helped the United States move from the old European economic model of state monopolies towards the free market capitalist system espoused by Adam Smith. It also gave the federal government, through Congress, increasing power to formulate coherent national economic policy and regulate economic activity. All regulatory law at the federal level, from navigation to the Internet, springs from Marshall's expansive interpretation of the Commerce Clause in this case. Of all Marshall's landmark opinions, this one may have been the most popular with the American public of his time. Gibbons v. Ogden was a blow to monopolies, which were despised, and an affirmation of Adam Smith's popular free market ideology. The decision also helped to keep U.S. law abreast of technology; most Americans viewed technology as the key to prosperity and were glad that the Court's view was so progressive. Gibbons and Ogden were so preoccupied with their litigation that the operator of the Bellona, Cornelius Vanderbilt, emerged as the long-term winner in the steamboat business, eventually amassing one of the greatest personal fortunes in U.S. history through steamboats and railroads. Marshall's ruling in Gibbons affirmed the power of the federal government over commerce, saying that any state law interfering with federal legislation in commerce between the states could not stand. He added, however, that internal commerce within a state fell completely under state authority. And he left open the issue of whether states could legislate in areas not regulated by Congress. Thomas Jefferson attacked Marshall's decision as another step in the "usurpation of all the rights reserved to the states." Southern slaveholders also objected, fearing that Congress might use its power to regulate interstate commerce to regulate the slave trade and even the production and sale of cotton, both of which were aspects of interstate commerce. Neither the Marshall Court, however, nor its successor Court under Chief Justice Roger B. Taney ever asserted this power to regulate the commerce of cotton and slavery. Quotes: "The Congress shall have power: To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."--United States Constitution, Article I, Section 3 "...the States do not derive their independence and sovereignty from the grant or concession of the British crown, but from their own act in the declaration of independence. By this act, they became 'free and independent States,' and as such, 'have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent States may of right do.' The State of New- York, having thus become sovereign and independent, formed a constitution, by which the 'supreme legislative power' was vested in its Legislature: and there are no restrictions on that power, which in any manner relate to the present controversy. On the other hand, the constitution of the United States is one of limited and expressly delegated powers, which can only be exercised as granted, or in the cases enumerated."--Thomas Oakley, attorney for Aaron Ogden, 1824 Gibbons v. Ogden, oral arguments "For, if the state of things which has already commenced is to go on; if the spirit of hostility, which already exists in three of our States, is to catch by contagion, and spread among the rest, as, from the progress of the human passions, and the unavoidable conflict of interests, it will too surely do, what are we to expect? Civil wars have often arisen from far inferior causes, and have desolated some of the fairest provinces of the earth."--Attorney General William Wirt, attorney for Thomas Gibbons, 1824 Gibbons v. Ogden oral arguments. "This instrument contains an enumeration of powers expressly granted by the people to their government. It has been said, that these powers ought to be construed strictly. But why ought they to be so construed? Is there one sentence in the constitution which gives countenance to this rule? In the last of the enumerated powers, that which grants, expressly, the means for carrying all others into execution, Congress is authorized 'to make all laws which shall be necessary and proper' for the purpose."--Chief Justice John Marshall, 1824, Gibbons v. Ogden opinion "Commerce, undoubtedly, is traffic, but it is something more: it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse. The mind can scarcely conceive a system for regulating commerce between nations, which shall exclude all laws concerning navigation, which shall be silent on the admission of the vessels of the one nation into the ports of the other, and be confined to prescribing rules for the conduct of individuals, in the actual employment of buying and selling, or of barter."--Chief Justice John Marshall, 1824, Gibbons v. Ogden opinion "We are now arrived at the inquiry-What is this power? It is the power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution... If, as has always been understood, the sovereignty of Congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations, and among the several States, is vested in Congress as absolutely as it would be in a single government, having in its constitution the same restrictions on the exercise of the power as are found in the constitution of the United States. The wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elections, are, in this, as in many other instances, as that, for example, of declaring war, the sole restraints on which they have relied, to secure them from its abuse. They are the restraints on which the people must often they solely, in all representative governments."--Chief Justice John Marshall, 1824, Gibbons v. Ogden opinion "Powerful and ingenious minds, taking, as postulates, that the powers expressly granted to the government of the Union, are to be contracted by construction, into the narrowest possible compass, and that the original powers of the States are retained, if any possible construction will retain them, may, by a course of well digested, but refined and metaphysical reasoning, founded on these premises, explain away the constitution of our country, and leave it, a magnificent structure, indeed, to look at, but totally unfit for use."--Chief Justice John Marshall, 1824, Gibbons v. Ogden opinion Questions to Ponder:
Selected Bibliography: Baxter, Maurice G. The Steamboat Monopoly: Gibbons v. Ogden, 1824. (New York: Alfred A. Knopf, 1972.) Johnson, Herbert A. The Chief Justiceship of John Marshall, 1801-1835. (Columbia, SC: University of South Carolina Press, 1997.) Newmyer, R. Kent. John Marshall and the Heroic Age of the Supreme Court. (Baton Rouge, LA: Louisiana State University Press, 2001.) Rimini, Robert V. Daniel Webster: The Man and His Time. (New York: W.W. Norton & Co., Inc., 1997.) Schwartz, Bernard. A History of the Supreme Court. (New York: Oxford University Press, 1993.) Smith, Jean Edward. John Marshall: Definer of a Nation. (New York: Henry Holt and Company, 1996.) Urofsky, Melvin, and Paul Finkelman, eds. Documents of American Constitutional and Legal History. (New York: Oxford University Press, 2002.) Wiecek, William M. Liberty Under Law: The Supreme Court in American Life. (Baltimore: The John Hopkins University Press, 1988.) Gateway Links: |
| Martin v. Mott
(1827)
Decided by a vote of 7 to 0. Conflict: During the War of 1812, President James Madison called on state militias to join with federal troops to fight in the nation's defense against the invading British. Daniel Tompkins, the governor of New York, obeyed Madison's order, calling up a number of militia companies under the federal Militia Act of 1792 and the Act for Calling Forth the Militia of 1795. Jacob E. Mott, a private in one of the companies, refused, was court-martialed and fined $96. When he refused to pay the fine, the Deputy U.S. Marshal, Martin, seized his property. Mott sued to recover his property, and a New York court found in his favor. Opinion: Justice Joseph Story delivered the Court's unanimous opinion. The Supreme Court affirmed that under Article II, Section 2, the president of the United States, acting under the authority of the U.S. Congress, had the exclusive right to decide if the state militia should be activated. Furthermore, the President's command was binding on state officials and state militia. The lower court's ruling was thus overturned. Context: In 1792, in response to the defeat of General Arthur St. Clair by Ohio Indians in the Northwest Territories, the U.S. Congress passed the Militia Act. This act authorized the states to conscript (draft or enroll) in their militias every able-bodied free, white citizen between 18 and 45 years of age. The Militia Act was strengthened by amendments in the Act for Calling Forth the Militia of 1795. Questions about the war powers and authority of the President of the United States as commander-in-chief arose in 1794, when President George Washington called up 15,000 militiamen from Virginia, Maryland, Pennsylvania, and New Jersey to suppress the Whiskey Rebellion. While enforcing the Embargo Acts in 1808, Jefferson had also issued a proclamation ordering "all officers having authority, civil or military ... by all means in their power, by force of arms or otherwise" to aid and assist in putting down resistance and smuggling, particularly in New England where the trade embargo with Britain had caused heavy economic losses. New England disagreed with James Madison and Congress for declaring war with Great Britain in 1812. Legislatures in Massachusetts, Connecticut, and New Hampshire condemned the war. The governors of Connecticut and Massachusetts refused Madison's order to provide militia. In 1815, Federalist delegates from five New England states met in secret session in Hartford, Connecticut, and adopted a resolution calling for the protection of state militia from conscription unauthorized by the Constitution and a formation of a regional interstate defense force funded by federal revenue but independent of federal control. Only the victory by Andrew Jackson over the British in New Orleans and the Treaty of Ghent squelched New England's threat to the Union. Frustrated by the states' defiance, in the wake of the war President Madison asked Congress to authorize a standing army of 20,000 men; Congress agreed to a smaller force, of 10,000. Impact/Consequences: Martin v. Mott settled the constitutional question of whether the President of the United States was the Commander in Chief, not merely of federal troops, but also the state militias. The nation's aversion to maintaining a large standing army meant that there were still very few troops in federal service (the U.S. Army, U.S. Navy, U.S. Marine Corps, and U.S. Coast Guard). By clearly placing the state militias under the authority of the president, national security was enhanced. Thanks to this decision, in the critical weeks following the attack on Fort Sumter, Abraham Lincoln did not have to deal with constitutional challenges to his calling up state militias to defend the Union. Quotes: "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several states, when called into the actual Service of the United States..."--The United States Constitution, Article II, Section 2, clause 1, 1787 "...whenever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe, it shall be lawful for the President of the United States to call forth such number of the militia of the State or States most convenient to the place of danger, or scene of action, as he may judge necessary to repel such invasion, and to issue his order for that purpose to such officer or officers of the militia as he shall think proper."--1795 Act For Calling Forth the Militia "It is, in its terms, a limited power, confined to cases of actual invasion, or of imminent danger of invasion...Is the President the sole and exclusive judge whether the exigency has arisen, or is it to be considered as an open question, upon which every officer to whom the orders of the President are addressed, may decide for himself, and equally open to be contested by every militia-man who shall refuse to obey the orders of the President? We are all of opinion, that the authority to decide whether the exigency has arisen, belongs exclusively to the President, and that his decision is conclusive upon all other persons. We think that this construction necessarily results from the nature of the power itself, and from the manifest object contemplated by the act of Congress."--Justice Joseph Story, 1827 Martin v. Mott opinion Questions to Ponder:
Selected Bibliography: Newmyer, R. Kent. Supreme Court Justice Joseph Story: Statesman of the Old Republic. (Chapel Hill, NC: University of North Carolina Press, 1985.) Sheffer, Martin S. The Judicial Development of Presidential War Powers. (Westport, CT: Praeger Publishers, 1999.) Skeen, Carl E. Citizen Soldiers in the War of 1812. (Lexington, KY: University Press of Kentucky, 1999.) Smith, Jean Edward. John Marshall: Definer of a Nation. (New York: Henry Holt and Company, 1996.) Wormuth, Francis. To Chain the Dog of War: The War Power of Congress in History and Law. (Urbana and Chicago: University of Illinois Press, 1986.) Gateway Links: |
| Cherokee Nation v. GA
(1831)
Decided by a vote of 5 to 2. In 1777, Captain Robert Farquhar, a merchant of South Carolina, sold clothing to the colony of Georgia valued at $169,613.33. Shortly afterwards, Farquhar (a Loyalist) returned to England where he died in 1784. Georgia, like many other colonies during the American Revolution, passed a law "sequestering" or freezing debts owed to Loyalists. The executor of Farquhar's estate, Alexander Chisholm, argued that Georgia should pay since the contract had been agreed upon prior to the sequestering act. Georgia refused to appear in the suit, claiming that it was immune to such suits as an independent and sovereign state. This stand by Georgia directly challenged Article III, section 2, of the Constitution, which authorized the Supreme Court to hear disputes between "a state and Citizens of another state." Opinion: At the time of Chisholm v. Georgia, the Supreme Court had not yet adopted the format of delivering an opinion. Instead, the justices delivered the decision ad seriatim, that is, one after the next, beginning with the junior member of the Court (Justice James Iredell) and concluding with the senior member of the court (Chief Justice John Jay.) Justice Thomas Johnson was absent for this case and resigned from the Court two months later. Four of the five participating justices declared that the Supreme Court had jurisdiction in the case and that Georgia owed Farquhar's estate the payment Chisholm had demanded. The majority determined that, under Article III and the intent of the framers, the Supreme Court not only had jurisdiction in the case but was required to hear suits brought against the states. Justice James Iredell dissented, believing that Article III gave Congress the power to grant sovereign immunity to the states from the jurisdiction of the federal courts, and without any Congressional directions one way or the other, the Supreme Court lacked jurisdiction. The majority ruled against Georgia, holding it in default for not appearing. Context: This was the first important case heard by the Court and it opened up a vigorous debate about the sovereignty of the states and the nature of the newly formed government of the United States. A literal reading of Article III, section 2, leaves little doubt but that the Supreme Court holds jurisdiction in disputes between a state and citizens of another state. But in the ratification debates defenders of the Constitution, known at the time as Federalists, had promised that the courts would never interpret this to mean that citizens of one state could actually sue another state. The only way this could happen is if a state agreed to the suit. With Chisholm, supporters of state sovereignty felt betrayed. They especially resented the words of Justices James Wilson, who declared in that sovereignty resided in the people of the United States and not in the state: "As to purposes of the Union, therefore, Georgia is not a sovereign state." For Wilson, and the Court's majority, the people had created a nation, and Article Three explicitly stated that its judicial power should extend over such controversies as Chisholm. By claiming that Georgia could be sued, the Court rejected the contention by the Anti-Federalists that states within the Union, were vested with the attributes of sovereignty relative to the federal government. Impact/Consequences: Public reaction to the Supreme Court's decision in Chisholm v. Georgia was explosive. Many feared that enemies of the American Revolution would use the courts to drain hard currency from the young republic. Others, including the editorial writers in leading newspapers, declared that this decision would allow the federal government to absorb state and local governments and create a new monarchy. John Hancock called a special session of the Massachusetts Legislature, which passed a resolution demanding that Congress amend the Constitution so that lawsuits against a state by citizens of a different state or foreign nation would be illegal. Two days after the decision in Chisholm was announced a resolution asking for such an amendment was introduced in the U.S. Senate. The draft amendment was approved by Congress and sent to the states on March 4, 1794. Ten months later, on January 5, 1795, with North Carolina's ratification, the three-fourths requirement was met. Oddly, President John Adams did not formally announce ratification until three years later, on January 8, 1798. (In 1922, the Supreme Court ruled that presidential action was not necessary for an amendment to become part of the Constitution, but instead becomes law the moment three-fourths of the states approve the amendment.) Chisholm v. Georgia, thus, is one of only three Supreme Court cases to date to have been overturned by constitutional amendment, in this case the Eleventh Amendment. (Two days after Adams announced the Eleventh Amendment, the Supreme Court overturned Chisholm with its decision in Hollingsworth v. Virginia.) Chisholm was subsequently joined by the Dred Scott decision, overturned by the Thirteenth Amendment, and the 1895 income tax case, Pollock v. Farmers Loan & Trust Co., overturned by the Sixteenth Amendment. The reaction of the public to Chisholm taught the Court a valuable lesson, namely that it is not a good idea to render decisions that conflict with a public opinion that is widespread and deeply felt. In subsequent Court decisions, especially during the long service of Chief Justice John Marshall, the Court kept these risks in mind. Although the Eleventh Amendment became part of the Constitution, subsequent judicial interpretations of this amendment allowed suits against state officers who allegedly violated the constitutional and civil rights of individuals. This pragmatic interpretation of the amendment occurred principally in the last half of the twentieth century, when public opinion turned decidedly against state sovereignty in some matters of privacy, civil rights, and individual freedoms. Quotes: "My conception of the Constitution is entirely different. I conceive, that all the Courts of the United States must receive ... all their authority, as to the manner of their proceeding, from the Legislature only ... If therefore, this Court is to be (as I consider it) the organ of the Constitution and the law, not of the Constitution only, in respect to the manner of its proceeding, we must receive our directions from the Legislature in this particular...."--Justice James Iredell, 1793 Chisholm v. Georgia dissent "Whoever considers, in a combined and comprehensive view, the general texture of the Constitution, will be satisfied, that the people of the United States intended to form themselves into a nation for national purposes. They instituted, for such purposes, a national Government, complete in all its parts, with powers Legislative, Executive and Judiciary; and, in all those powers, extending over the whole nation. Is it congruous, that, with regard to such purposes, any man or body of men, any person natural or artificial, should be permitted to claim successfully an entire exemption from the jurisdiction of the national Government? Would not such claims, crowned with success, be repugnant to our very existence as a nation? When so many trains of deduction, coming from different quarters, converge and unite, at last, in the same point; we may safely conclude, as the legitimate result of this Constitution, that the State of Georgia is amenable to the jurisdiction of this Court."--Justice James Wilson, 1793 Chisholm v. Georgia opinion "Let us now turn to the Constitution. The people therein declare, that their design in establishing it, comprehended six objects. 1st. To form a more perfect union. 2nd. To establish justice. 3rd. To ensure domestic tranquility. 4th. To provide for the common defence. 5th. To promote the general welfare. 6th. To secure the blessings of liberty to themselves and their posterity.... It may be asked, what is the precise sense and latitude in which the words 'to establish justice,' as here used, are to be understood? The answer to this question will result from the provisions made in the Constitution on this head. They are specified in the second section of the third article, where it is ordained, that the judicial power of the United States shall extend to ten descriptions of cases... The exception contended for, would contradict and do violence to the great and leading principles of a free and equal national government, one of the great objects of which is, to ensure justice to all: To the few against the many, as well as to the many against the few."--Chief Justice John Jay, 1793 Chisholm v. Georgia opinion "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution ... between a State and Citizens of another State...."--Article III, Section 2, Constitution of the United States "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens of Subjects of any Foreign State."--Amendment XI (Ratified February 7, 1795). Questions to Ponder:
Selected Bibliography: Eaton, Thomas A. and Michael Wells. Constitutional Remedies: A Reference Guide to the United States Constitution. (Westport, CT: Praeger Publishers, 2002.) Epstein, Lita. The Complete Idiot's Guide to: The Supreme Court. (Indianapolis, IN: Alpha Books, 2004.) Johnson, John W., ed. Historic U.S. Court Cases: An Encyclopedia. 2d ed. (New York: Routledge, 2001.) Gateway Links: |
| Worcestor v. GA
(1832)
Decided by a vote of 5 to 1. Conflict: In 1830, the state legislature of Georgia passed an act requiring white residents living in Cherokee territory after March 31, 1831 to swear allegiance to Georgia and be licensed. The measure was directed against white missionaries who were helping the Cherokee. A group of ministers from the American Board of Commissioners for Foreign Missions lived in New Echota, Cherokee Nation, which was claimed by Georgia as part of Gwinnett County. They refused to obey the law, were convicted and sentenced to four years at hard labor in the penitentiary. Georgia offered a pardon, but Samuel E. Worcester and Elizur Butler wanted to test the law and refused. Worcester's lawyers filed a writ of error to the Supreme Court of the United States on October 27, 1831. They claimed that Georgia's law was in violation of the Constitution, United States treaties with the Cherokee, and an act of the U.S. Congress. Opinion: Chief Justice John Marshall delivered the opinion of a majority of the justices of the Supreme Court. Marshall ruled that the national government had exclusive jurisdiction in Cherokee territory and that Georgia's law was unconstitutional. He would not describe the Cherokee Nation as a foreign government, but even as a dependent domestic nation, it had rights Georgia could not destroy including the right to self-government. The chief justice also acknowledged that the treaties into which the United States had entered with the Cherokee obliged the U.S. to protect the lands and rights of that dependent nation. Justice John McLean wrote a concurring opinion. Justice Henry Baldwin dissented on the basis of procedural error and also his reasoning in Cherokee Nation v. Georgia. Context: Since the 18th century, the Cherokee tribe had adopted a policy of assimilation and accommodation in the face of expansion by Anglo-American settlers. The tribe farmed much of its land, had substantial herds of domestic livestock, and some members owned slaves of African origin. Sequoyah, a member of the tribe, created a written syllabary (much like an alphabet), which was adopted by the tribe in 1821; the Cherokee rapidly became literate, publishing their own newspaper. In 1827 the tribe adopted a written constitution and declared the Cherokee Nation to be a sovereign state. In the 1820s, Georgia aggressively pursued a policy of driving the Cherokee Tribe from its state. The state population having grown six-fold, Georgians wanted to expand onto Cherokee lands and farm them. The Georgia legislature passed acts adding territory belonging to the Cherokee Nation to Georgia and on December 20, 1828 passed a law declaring the laws of the Cherokee National Council null and abolishing the Cherokee government and courts effective June 1, 1830. With the announcement in July 29, 1829 that gold had been discovered on Cherokee land, the state moved to seize control of the North Georgia gold region, which by 1830 produced 300 ounces of gold daily, and had spurred a gold rush. The Congress of the United States passed the Removal Act on May 28, 1830 offering land west of the Mississippi River to eastern tribes who voluntarily emigrated. President Andrew Jackson promptly signed the act into law. Jackson had fought the Creek in 1814 and the Seminole in 1818. He was also pivotal in negotiating nine of the eleven treaties from 1814-1824, by which the United States gained control by treaty of most of Alabama and Florida, as well as large tracts in Georgia, Tennessee, North Carolina, Mississippi, and Kentucky. The Georgia legislature already considered the Cherokee to be tenants and with the passage of the Removal Act of 1830 by the U.S. Congress, treated them as tenants on the verge of eviction. It enacted a flurry of laws, surveying Cherokee lands for distribution by lottery, declaring any new contracts with Cherokees to be void, and it also seized the gold mines in North Georgia. Faced with political annihilation, Cherokee chief John Ross decided to fight Georgia in the courts, rather than through warfare as the Seminole had done. Prior to the Cherokee litigation, tribal rights had already been eroded in the Marshall Court. In 1823, in Johnson v. McIntosh, the Supreme Court had ruled that the Illinois and Piankeshaw tribes did not have title to the land it had sold to two white men, only a "right to occupancy." The title to the land actually had passed from Great Britain to the United States under the principle of discovery, when Britain had originally claimed Indian lands they had discovered. Nonetheless, Ross turned to former Attorney General of the United States, William Wirt, a formidable lawyer experienced in arguing before the Supreme Court, to challenge Georgia. After losing Cherokee Nation v. Georgia, they sought a better test case. Impact/Consequences: The Supreme Court's decision was ignored. Georgia did not release the ministers but did not formally defy the Court. (Ultimately it offered pardons anew to the ministers, and they accepted.) Andrew Jackson is reported to have said, "John Marshall has made his decision, now let him enforce it!" Most certainly he wrote, "The decision of the supreme court has fell still born and they find they cannot coerce Georgia to yield to its mandate." Perhaps Jackson felt he had some legal ground for his inaction. Without a formal act of defiance he may have been disinclined to intervene. Furthermore, numerous state court decisions had created a rival legal position to Marshall's, arguing that Indians were individuals, not tribal nations, and thus the states had complete sovereignty to regulate them since they lived within the borders of a state. The Supreme Court itself had adjourned for the session, so was in no position, itself, to press for enforcement. Chief Justice John Marshall, still grieving over the death of his wife of 49 years only three months earlier, may not have had the stomach for a confrontation with Jackson. Regardless of these circumstances, it was one of the most shocking repudiations of the Supreme Court's authority in the history of the Court. It is also a stark reminder that the power of the Supreme Court is entirely dependent on respect for it as an institution, as well as the cooperation of the executive branch when force is necessary. Some reformers in the Northeast supported the Cherokee's continued efforts to resist. In April 1838, Ralph Waldo Emerson protested to Martin van Buren, warning, "the name of this nation, hitherto the sweet omen of religion and liberty, will stink to the world." A month later, President van Buren ordered the U.S. Army to force the Cherokee at bayonet-point onto what would be known as the "Trail of Tears." Seventeen thousand Cherokee made the 1,200-mile winter trek to Indian Territory (Oklahoma) which claimed the lives of an estimated 4,000 Cherokee. Quotes: "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.]"--The United States Constitution, Article III, Section 2, clause 1, 1787 "Sec. 7. And be it further enacted by the authority aforesaid, that all white persons residing within the limits of the Cherokee nation, on the 1st day of March next, or at any time thereafter, without a license or permit from his excellency the governor, or from such agent as his excellency the governor shall authorise to grant such permit or license, and who shall not have taken the oath hereinafter required, shall be guilty of a high misdemeanour, and, upon conviction thereof, shall be punished by confinement to the penitentiary at hard labour for a term not less than four years..."--Act of Georgia, December 22, 1830 "From the commencement of our government, congress has passed acts to regulate trade and intercourse with the Indians; which treat them as nations, respect their rights, and manifest a firm purpose to afford that protection which treaties stipulate. All these acts, and especially that of 1802, which is still in force, manifestly consider the several Indian nations as distinct political communities, having territorial boundaries, within which their authority is exclusive, and having a right to all the lands within those boundaries, which is not only acknowledged, but guarantied by the United States."--Chief Justice John Marshall, 1832 Worcester v. Georgia opinion "The Cherokee nation, then, is a distinct community occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter, but with the assent of the Cherokees themselves, or in conformity with treaties, and with the acts of congress. The whole intercourse between the United States and this nation, is, by our constitution and laws, vested in the government of the United States. The act of the state of Georgia, under which the plaintiff in error was prosecuted, is consequently void, and the judgment a nullity."--Chief Justice John Marshall, 1832 Worcester v. Georgia opinion Questions to Ponder:
Selected Bibliography: Denson, Andrew. Demanding the Cherokee Nation: Indian Autonomy and American Culture, 1830-1900. (Lincoln, NE: University of Nebraska Press, 2004.) Garrison, Tim A. The Legal Ideology of Removal. (Athens, GA: University of Georgia Press, 2002.) Newmyer, R. Kent. John Marshall and the Heroic Age of the Supreme Court. (Baton Rouge, LA: Louisiana State University Press, 2001.) Prucha, Francis P. The Great Father: The United States Government and the American Indians, Vol. 1. (Lincoln, NE: University of Nebraska Press, 1984.) Smith, Jean Edward. John Marshall: Definer of a Nation. (New York: Henry Holt and Company, 1996.) Wilkins, David J. American Indian Sovereignty and the U.S. Supreme Court. (Austin, TX: University of Texas Press, 1997.) Gateway Links: |
| Charles River Bridge v. Warren Bridge
(1837)
Decided by a vote of 6 to 2. Conflict: In 1785, the Massachusetts legislature authorized the Charles River Bridge Company to build and operate for 40 years a toll bridge across the Charles River in Boston. The toll bridge proved quite profitable generating $1,000,000. Stock purchased for $333 in 1792 increased in value to $2,080 by 1814. In 1828, the Massachusetts legislature chartered the Warren Bridge Company to build a second bridge, which at its closest point was about 250 feet from the Charles River Bridge. Once the Warren Bridge Company had earned back from tolls what it had spent on constructing the bridge, they were to turn it over to the state and use of the bridge would be free. The Charles River Bridge asked the Massachusetts Supreme Judicial Court for an injunction against Warren Bridge, claiming their charter implied they would have exclusive rights and that construction of the Warren Bridge would impair their contract, in violation of the U.S. Constitution. The Massachusetts court deadlocked 2-2 on the case, but upheld the act based on the federal Judiciary Act of 1789 so that the case could proceed to the United States Supreme Court. The case was argued before the Supreme Court in 1831, but Marshall's Court also deadlocked. Deaths and retirements on the Supreme Court delayed a rehearing until 1837 before a vastly different, Jacksonian court led by the new Chief Justice, Roger B. Taney. Opinion: Chief Justice Roger B. Taney wrote the opinion for the majority, his first in a constitutional case. He denied the injunction saying that a literal reading of the legislature's grant implied no exclusive rights or guaranteed profit to the Charles River Bridge. Loosely interpreting vague clauses would thwart the state's objective to improve public transportation. Among the powers reserved to the states by the Constitution was the power to provide improvements for the prosperity and well-being of the public. Justice John McLean wrote a concurring opinion. Justice Joseph Story wrote a dissenting opinion, concluding that the Massachusetts legislature had implied exclusive rights to Charles River Bridge and had impaired their contract in violation of the "contracts clause" the U.S. Constitution. Story was joined in his dissent by Justice Smith Thompson. Context: In the spring of 1835, Chief Justice John Marshall suffered injuries in a stagecoach accident. His health, which had declined since the death of his wife on December 25, 1831, worsened. In June he traveled from Washington, D.C. to Philadelphia to seek medical attention. Marshall died on July 6, 1835 at the age of 79. During his funeral procession, the Liberty Bell was tolled; although not documented, the custodian of Independence Hall, Frank Etting, claimed that this is when the Liberty Bell cracked. Andrew Jackson nominated Roger B. Taney to be the new Chief Justice of the United States, and the Senate confirmed the appointment. Taney, a Democrat from Maryland, shared Jackson's enmity to the Second Bank of the United States. In addition to filling Marshall's seat, during his presidency Jackson had filled five other Court vacancies with Justices John McLean, Henry Baldwin, James M. Wayne, Philip Barbour, and John Catron. The Charles River Bridge case was the first major case to be decided by the Jacksonian Court. Impact/Consequences: The decision in Charles River Bridge v. Warren Bridge gave states greater power to regulate corporations, substantially altering the contract doctrine created through decisions of the Marshall Court, including Fletcher v. Peck and Dartmouth College v. Woodward. This supported the Jacksonian Democrats' goals of attacking privilege and monopoly while encouraging new entrepreneurs. In the long term, the Charles River Bridge decision has been viewed as stimulating the development of transportation and public facilities by opening the market to more competitors. It also asserted the idea that states operate in the interest of the common good and that this goal generally supercedes individual interests, laying the groundwork, for example, for the confiscation of private property under the rights of eminent domain. Quotes: "No state shall ... pass any ... Law impairing the Obligation of Contracts..."--The United States Constitution, Article I, Section 10, clause 1, 1787 "Regarding the practical operation and effect of the Warren bridge charter upon the rights and property of the plaintiffs.... In point of fact, it takes the property of the plaintiffs, and gives it to the public. It is, in its operation, an act of confiscation. It violates all those distinctions of right and wrong, of justice and injustice, which lie at the foundation of all law, and of all government; and if men were to deal with each other as this act deals with the plaintiffs, the very frame-work of our civil polity would be broken down; all confidence would be destroyed; and all sense of security for the rights of persons and property would be lost."--Warren Dutton, and Lemuel Shaw, attorneys for Charles River Bridge, 1837 Charles River Bridge v. Warren Bridge, oral arguments "This is said to be one of the principal things which ought to employ the attention of government, to promote the public welfare and the interests of trade; and that nothing ought to be neglected to render them safe and commodious. The power to do this, is as much inherent and inalienable, as the right of taxation; which, it is said, resides in the government, and need not be reserved expressly, in any grant of property or franchises, to individuals or corporations. Ferries, turnpikes, railroads, toll bridges and common roads, are equally public ways; differing only in the manner of their creation. If a turnpike may be rendered useless by a railroad, or a common highway, why not by another turnpike?"--Simon Greenleaf, attorney for Warren Bridge, 1837 Charles River Bridge v. Warren Bridge, oral arguments "...does the charter contain such a contract on the part of the state?... It must be admitted on all hands, that there is none; no words that even relate to another bridge, or to the diminution of their tolls, or to the line of travel. There are no words which import such a contract as the plaintiffs in error contend for, and none can be implied...The whole community are interested in this inquiry, and they have a right to require that the power of promoting their comfort and convenience, and of advancing the public prosperity, by providing safe, convenient and cheap ways for the transportation of produce, and the purposes of travel, shall not be construed to have been surrendered or diminished by the state; unless it shall appear by plain words, that it was intended to be done."--Chief Justice Roger B. Taney, 1837 Charles River Bridge v. Warren Bridge opinion "And what would be the fruits of this doctrine of implied contracts, on the part of the states, and of property in a line of travel, by a corporation, if it would now be sanctioned by this court? To what results would it lead us? We shall be thrown back to the improvements of the last century, and obliged to stand still, until the claims of the old turnpike corporations shall be satisfied; and they shall consent to permit these states to avail themselves of the lights of modern science, and to partake of the benefit of those improvements which are now adding to the wealth and prosperity, and the convenience and comfort, of every other part of the civilized world... This court are not prepared to sanction principles which must lead to such results."--Chief Justice Roger B. Taney, 1837 Charles River Bridge v. Warren Bridge opinion "I maintain, that under the principles of the common law, there exists no more right in the legislature of Massachusetts, to erect the Warren bridge, to the ruin of the franchise of the Charles River bridge, than exists to transfer the latter to the former, or to authorize the former to demolish the latter. Upon the whole, my judgment is, that the act of the legislature of Massachusetts granting the charter of Warren Bridge, is an act impairing the obligation of the prior contract and grant to the proprietors of Charles River bridge; and, by the constitution of the United States, it is, therefore, utterly void."--Justice Joseph Story, 1837, Charles River Bridge v. Warren Bridge dissent Questions to Ponder:
Selected Bibliography: Currie, David. The Constitution in the Supreme Court: The First Hundred Years, 1789-1888. (Chicago: The University of Chicago Press, 1985.) Epstein, Lita. The Complete Idiot's Guide to the Supreme Court. (New York: Alpha Books, 2004.) Kutler, Stanley I. Privilege and Creative Destruction: The Charles River Bridge Case. (Philadelphia: Lippincott, 1971.) Newmyer, R. Kent Newmyer. The Supreme Court under Marshall and Taney (Wheeling, IL: Harlan Davidson, 1968.) Schwartz, Bernard. A History of the Supreme Court. (New York: Oxford University Press, 1993.) Pessen, Edward. Jacksonian America: Society, Personality, and Politics. (Urbana, IL: University of Illinois Press, 1985.) Urofsky, Melvin, and Paul Finkelman, eds. Documents of American Constitutional and Legal History. (New York: Oxford University Press, 2002.) Gateway Links: |
| NY v. Miln
(1837)
Decided by a vote of 6 to 1. Conflict: On February 11, 1824, the New York State Legislature passed a statute requiring masters of coastal or transoceanic vessels entering New York to provide a list and report with information about their passengers within 24 hours of arriving in New York City. Ships' masters also were required to post a security of $300 per passenger as a guarantee they would not become wards of the state. George Miln, master of the ship Emily, refused to file the required report, so New York City fined him $15,000. The case arrived at the Supreme Court from the Circuit Court of the Southern District of New York in 1834. The recent decision by the Court in Gibbons v. Ogden (1824) appears to have established a precedent rendering unconstitutional any state law governing interstate commerce. Opinion: Justice Philip Barbour wrote the opinion for the Taney Court. He upheld the New York law by ignoring the Commerce Clause and, instead, focusing on the "police power" of the state, which could be used legitimately, he argued, to protect the health, safety and welfare of the state's citizens without conflicting with the Constitution of the United States. Justice Smith Thompson wrote a more narrow concurring opinion, saying that the law did not conflict with federal law. Justice Joseph Story dissented, maintaining that the New York law violated the express power granted to Congress to regulate foreign commerce in the Constitution's Commerce Clause. Context: This case was first argued when Chief Justice John Marshall was still alive. It is believed a 4-3 majority existed, which would have ruled the New York statute unconstitutional, in violation of the Commerce Clause. However, two of the majority justices were absent from the court, so Marshall ruled that the Supreme Court could not hand down a decision because there were not four justices to constitute the majority. The Court scheduled the case to be argued again. In the interim, Chief Justice Marshall died and President Andrew Jackson named his successor, Chief Justice Roger B. Taney. By the time the case was heard, five associate justices on the court were also Jackson appointments. This case was argued as the United States was beginning to experience its first burst of immigration, in the 1830s. Massachusetts and New York were feeling the impact of large numbers of poor English and Irish immigrants in their cities. The Massachusetts legislature asked its Congressional delegation to convince Congress to pass a law preventing the "introduction of paupers" into the United States. On July 4, 1836, the U.S. Senate passed a resolution for the Secretary of the Treasury to collect facts to decide if European countries were deliberately rounding up their poor and deporting them to the United States. The investigation, reported in 1837 shortly before the Court's Miln decision, failed to discover any intentional plots, but Congress continued to mull options for restricting immigration, even considering the enactment of national Poor Laws allowing the United States to deport paupers back to their nation of origin. Impact/Consequences: The decision in New York v. Miln enhanced some state authority over commerce, eroding Gibbons v. Ogden. Over a century later, the Supreme Court reversed Miln through its decision in Edwards v. California (1941), declaring that the New York legislators had erroneously used economic criteria as a means of restricting personal movement and travel. The public outcry over the burden to taxpayers of immigrant paupers spurred the Twenty-fifth Congress to consider immigration restrictions authorizing fines of $1,000 for ship masters who brought "idiots," "lunatics," the "incurably diseased," or persons guilty of "infamous crime." The proposal was never enacted, so each city and state passed its own legislation although there was some coordination between the states. For example, New York pressured New Jersey to take steps so immigrants trying to evade its law could not land in New Jersey and then move to New York; Massachusetts did the same with Maine. Piecemeal, immigration restrictions were placed by the states and enforced by local officials. The case was precedent setting and highly controversial because it raised the issue of state regulation of the interstate domestic slave trade, the travel of free blacks and abolitionists, and the transit of antislavery tracts, mailings, and pamphlets across state boundaries. The Court avoided the question of concurrent federal-state commerce powers by holding that the Commerce Clause of the U. S. Constitution probably covered trade in goods and not persons. This was the first time in history that the Court allowed a state to exercise its inherent police power to protect the welfare of its citizens by regulating the contents of vessels moving on interstate waterways. It ruled that this law regulated police not commerce. Quotes: "The Congress shall have power: To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."--The United States Constitution, Article I, Section 3, 1787 "The law is not a commercial regulation, in the sense contemplated in the constitution; but a police regulation. It is a part of the system of poor laws, and intended to prevent the introduction of foreign paupers. This power of determining how and when strangers are to be admitted is inherent in all communities. Fathers of families, officers of colleges, and the authorities of walled cities, all have this power, as an incident of police. In states, it is a high sovereign power. It belonged to the states, before the adoption of the federal constitution. It is nowhere relinquished; nor can it be, with safety. It is essential to the very existence of some, and to the prosperity and tranquillity of all."--Blount, attorney for New York City, 1837 New York v. Miln oral arguments "If the evils which the law of New York is intended to remedy or prevent, exist, or may occur, congress may pass a law to provide a remedy, as this legislation by the state of New York is not authorized by the constitution, and is void. It is in direct opposition to the power, which is given by the constitution to congress to regulate commerce; and is in actual collision with that power as it has been exercised by congress. The law is not a law which prevents the admission of felons and passengers into New York, but which affects the navigation of all countries, as connected by their commerce with this country; and conflicts with the express stipulations of treaties for the regulation of that commerce."--White, attorney for George Miln, 1837 New York v. Miln oral arguments "...a state has the same undeniable and unlimited jurisdiction over all persons and things, within its territorial limits, as any foreign nation; where that jurisdiction is not surrendered or restrained by the constitution of the United States. That, by virtue of this, it is not only the right, but the bounden and solemn duty of a state, to advance the safety, happiness and prosperity of its people, and to provide for its general welfare, by any and every act of legislation, which it may deem to be conducive to these ends; where the power over the particular subject, or the manner of its exercise is not surrendered or restrained, in the manner just stated. That all those powers which relate to merely municipal legislation, or what may, perhaps, more properly be called internal police, are not thus surrendered or restrained; and that, consequently, in relation to these, the authority of a state is complete, unqualified and exclusive."--Justice Philip Barbour, 1837 New York v. Miln opinion "We think it as competent and as necessary for a state to provide precautionary measures against the moral pestilence of paupers, vagabonds, and possibly convicts; as it is to guard against the physical pestilence, which may arise from unsound and infections articles imported, or from a ship, the crew of which may be laboring under an infectious disease."--Justice Philip Barbour, 1837 New York v. Miln opinion "I admit, in the most unhesitating manner, that the states have a right to pass health laws and quarantine laws, and other police laws, not contravening the laws of congress rightfully passed under their constitutional authority. I admit, that they have a right to pass poor- laws, and laws to prevent the introduction of paupers into the state, under the like qualifications. I go further, and admit, that in the exercise of their legitimate authority over any particular subject, the states may generally use the same means, which are used by congress, if these means are suitable to the end. But I cannot admit, that the states have authority to enact laws, which act upon subjects beyond their territorial limits, or within those limits and which trench upon the authority of congress in its power to regulate commerce."--Justice Joseph Story, 1837, Miln v. New York dissent Questions to Ponder:
Selected Bibliography: Bittker, Boris I. Bittker on the Regulation of Interstate and Foreign Commerce. (New York: Aspen Law and Business, 1999.) Fahrmeir, Andreas, Olivier Faron and Patrick Weil, eds. Migration Control in the North Atlantic World: Migration Control in the Nineteenth Century. (New York: Berghahn Books, 2003.) Johnson, John W., ed. Historic U.S. Court Cases: An Encyclopedia. 2d. ed. (New York: Routledge, 2001.) Schwartz, Bernard. A History of the Supreme Court. (New York: Oxford University Press, 1993.) Urofsky, Melvin, and Paul Finkelman, eds. Documents of American Constitutional and Legal History. (New York: Oxford University Press, 2002.) Wiecek, William M. Liberty Under Law: The Supreme Court in American Life. (Baltimore: The John Hopkins University Press, 1988.) Gateway Links: |
| Prigg v. PA
(1842)
Decided by a vote of 7 to 0. Conflict: Margaret Morgan, the slave of Margaret Ashmore of Maryland, escaped to Pennsylvania in 1832. Ashmore hired Edward Prigg and others to capture Morgan and return her to slavery. Five years later, Prigg located Morgan and obtained a warrant from the justice of the peace ordering the local constable to bring in Morgan and her four children, including one born in Pennsylvania. The local justice of the peace refused Prigg's request for a certificate of removal. Prigg took Margaret Morgan and her children to Maryland in violation of an 1826 Pennsylvania law detailing the procedure for recovery of fugitive slaves. The two states agreed that only Prigg would be extradited to Pennsylvania and that the trial would be expedited in order for the case to move quickly to the Supreme Court for a decision on the power of states to legislate the handling of fugitive slave. Prigg appealed to the United States Supreme Court claiming that the Pennsylvania law conflicted with both the Constitution's Fugitive Slave Clause (Article IV, Section 2, clause 3) and the Fugitive Slave Act of 1793 passed by the United States Congress. Opinion: Justice Joseph Story wrote the Court's unanimous opinion striking down Pennsylvania's law, upholding the constitutionality of the Fugitive Slave Act of 1793, and overturning Prigg's conviction. The majority of the justices further believed that states had no power to enact laws regarding fugitives since the Fugitive Slave Act was a power exclusive to the federal government. Three justices--including Chief Justice Roger B. Taney--disagreed on this point, believing it was a concurrent power and that states could pass laws authorizing officials to enforce the federal statute. The ruling did not settle the issue but rather served to inflame the controversy because Justice Story's opinion held that the federal government could not force state judges and other state officials to enforce the Fugitive Slave Act. In a powerful concurring opinion that read like a dissent, Chief Justice Taney highlighted this portion of the opinion and thus strengthened those forces opposed to the law. Context: When the Constitution was written in 1787, Article IV, Section 2, clause 3 declared that escaped slaves did not become free and could be claimed and returned to their owners. Because of a dispute involving Virginia slaves who had fled to Pennsylvania, the U.S. Congress passed the Fugitive Slave Act of 1793, making it a federal crime to help a fugitive slave, establishing the procedure by which escaped slaves could be returned, even from "free states." The Act made slave-catching legal. Slave-catchers posed a life-long threat to escaped slaves, but also to their children. Free blacks were sometimes snatched and sold into slavery, as well. Nonetheless, runaway slaves continued to flee north at an estimated rate of 1,000 per year. Pennsylvania was a favored destination because it was close to bordering slave states (Maryland, Delaware, and Virginia), and because it was home to a large number of Quakers and other abolitionists. The abolitionists organized in the 1830s to thwart the law, moving fugitives along the developing Underground Railroad and also financing court challenges. Maryland and Pennsylvania had been long at odds over fugitive slaves. Between 1817 and 1826, Maryland bombarded Pennsylvania with petitions and resolutions claiming Pennsylvanians were encouraging slaves to run away from Maryland and resist slave catchers with violence. However, race discrimination was on the rise in Pennsylvania, and some Pennsylvanians discourage fugitive slaves from settling in the state. Consequently, in 1826, the two states agreed on procedures to be used by slave catchers in detaining and removing fugitive slaves from their states, and both states subsequently enacted laws reflecting this agreement. Yet, many Pennsylvanians continued to oppose slavery and actively resisted the return of fugitive slaves, often with the cooperation of local and state officials. Abolitionists and pro-slavery forces in the nation had taken the conflict nationally by 1842. President John Tyler supported annexing Texas and admitting it to the Union as another slave state. Congress had adopted a "gag rule" banning antislavery petitions; former president John Quincy Adams faced censure for disregarding the rule. Abolitionists flooded the nation with anti-slavery speakers and tracts denouncing slavery as a sin against God. Pro-slavery mobs attacked abolitionist newspaper editors and speakers, sometimes inflicting bodily harm on them and destroying their presses. It was in this context that the Supreme Court took up Prigg v. Pennsylvania. Impact/Consequences: Although the Fugitive Slave Act of 1793 had been upheld, only officers of the federal government could enforce it. The federal law establishment was tiny and wholly inadequate to the task. If the northern states ignored it, the act was in effect nullified. Some northerners reacted violently to Prigg v. Pennsylvania. Mobs attacked slave-catchers and freed captured runaway slaves and threatened local officials and courts who cooperated with slave-catchers. More typically, the states enacted "personal liberty laws." In Justice Story's opinion, he used the phrase "unless prohibited by state legislation." Northern legislatures passed laws barring state or local officials from offering aid in the recapture of fugitive slaves. In Pennsylvania, the 1826 law voided by the Supreme Court was replaced in 1847 by a law that prohibited state officials from enforcing the Fugitive Slave Act of 1793. Judges were ordered to ignore new cases arising from the Act and issue no warrants acting upon it. It fined any jailer who detained a fugitive slave, and made it a misdemeanor to use of force on a runaway. This followed from the interpretation of Story's ruling that the federal government could not force state officials to enforce the Fugitive Slave Law. The authors of the Compromise of 1850 would try to patch the impending rupture with a new Fugitive Slave law that empowered federal commissioners to enforce federal laws, thus making slave catchers the agents of the federal government. This further enraged opponents of slavery, convincing many anti-slavery citizens that a slave-power conspiracy controlled all branches of government. As a result, private citizens all over the non-slave states stepped up their agitation against slavery, organized political parties opposed to the spread of slavery into the territories won from Mexico in the Mexican-American War of 1848, and argued in favor of states rights as a justification for violating the Fugitive Slave Law of 1850. The decisions of the Supreme Court of the United States could not and did not hold the nation together. Quotes: "No person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor; but shall be delivered up, on claim of the party to whom such service or labor may be due."--The United States Constitution, Article IV, Section 2, clause 3, 1787 "That whenever the executive authority of any state in the Union, or of either of the territories northwest or south of the river Ohio, shall demand any person as a fugitive from justice, of the executive authority of any such state or territory to which such person shall have fled, and shall moreover produce the copy of an indictment found, or an affidavit made before a magistrate of any state or territory as aforesaid, charging the person so demanded, with having committed treason, felony or other crime, certified as authentic by the governor or chief magistrate of the state or territory from whence the person so charged fled, it shall be the duty of the executive authority of the state or territory to which such person shall have fled, to cause him or her to be arrested and secured, and notice of the arrest to be given to the executive authority making such demand, or to the agent of such authority appointed to receive the fugitive, and to cause the fugitive to be delivered to such agent when he shall appear..."--The Fugitive Slave Act of 1793, February 12, 1793, "If any person or persons shall, from and after the passing of this act, by force and violence, take and carry away, or cause to be taken or carried away, and shall, by fraud or false pretense, seduce, or cause to be seduced, or shall attempt so to take, carry away or seduce, any negro or mulatto, from any part or parts of this commonwealth, to any other place or places whatsoever, out of this commonwealth, with a design and intention of selling and disposing of, or of causing to be sold, or of keeping and detaining, or of causing to be kept and detained, such negro or mulatto, as a slave or servant for life, or for any term whatsoever, every such person or persons, his or their aiders or abettors, shall on conviction thereof, in any court of this commonwealth having competent jurisdiction, be deemed guilty of a felony."--Pennsylvania Fugitive slave recovery act, March 25, 1826 "...if there be a conflict between federal and state legislation, the latter must yield to the constitutional supremacy of the former. It remains, then, only to show, that such a conflict exists in the present case; and a very cursory examination and comparison of the two laws will be abundantly sufficient for the purpose. Thus, the act of congress authorizes the claimant to arrest the fugitive, without a warrant. The Pennsylvania law peremptorily requires one. The act of congress admits the oath of the owner or his agent, as proof of the claim. The Pennsylvania law excludes both, and requires the testimony of indifferent witnesses... The object of both may be the same, but the means of attaining it are entirely different."--Jonathan Meredith, attorney for Edward Prigg, 1842, Prigg v. Pennsylvania, oral arguments "The constitution does not aim at any abridgment of the state sovereignties on this subject, except in the single point of prohibiting them from setting fugitive slaves at liberty."--Pennsylvania Attorney General Ovid F. Johnson, attorney for Pennsylvania, 1842, Prigg v. Pennsylvania, oral arguments "We hold the [Pennsylvania] act to be clearly constitutional in all its leading provisions, and, indeed, with the exception of that part which confers authority upon state magistrates, to be free from reasonable doubt and difficulty upon the grounds already stated. As to the authority so conferred upon state magistrates, while a difference of opinion has existed, and may exist still on the point, in different states, whether state magistrates are bound to act under it; none is entertained by this Court that state magistrates may, if they choose, exercise that authority, unless prohibited by state legislation."--Justice Joseph Story, 1842 Prigg v. Pennsylvania opinion "The opinion of the court maintains, that the power over this subject is so exclusively vested in congress, that no state, since the adoption of the constitution, can pass any law in relation to it. In other words, according to the opinion just delivered, the state authorities are prohibited from interfering, for the purpose of protecting the right of the master, and aiding him in the recovery of his property. I think, the states are not prohibited; and that, on the contrary, it is enjoined upon them as a duty, to protect and support the owner, when he is endeavoring to obtain possession of his property found within their respective territories."--Chief Justice Roger B. Taney, 1842 Prigg v. Pennsylvania concurring opinion Questions to Ponder:
Selected Bibliography: Currie, David. The Constitution in the Supreme Court: The First Hundred Years, 1789-1888. (Chicago: The University of Chicago Press, 1985.) Feherenbacher, Don E. The Slaveholding Republic: An Account of the United States Government's Relations to Slavery. (New York: Oxford University Press, 2001.) Finkelman, Paul. "Prigg v. Pennsylvania and Northern State Courts: Anti-Slavery Use of a Pro-Slavery Decision," Civil War History 25, no. 1 (1979), 5-35. Newmyer, R. Kent. Supreme Court Justice Joseph Story: Statesman of the Old Republic. (Chapel Hill, NC: University of North Carolina Press, 1985.) Newmyer, R. Kent Newmyer. The Supreme Court under Marshall and Taney (Wheeling, IL: Harlan Davidson, 1968.) Plagg, Eric W. "'Let the Constitution Perish': Prigg v. Pennsylvania, Joseph Story, and the Flawed Doctrine of Historical Necessity," Slavery and Abolition 25, no. 3 (2004.) Schwartz, Bernard. A History of the Supreme Court. (New York: Oxford University Press, 1993.) Gateway Links: |
| Scott v. Sandford
(1857)
Decided by a vote of 8 to 1. Court dismissed Scott's suit for his freedom as an enslaved person who became free after having lived in the free soil state of Illinois and the free territory of what became the state of Minnessota. The Taney Court dismissed the case for lack of jurisdiction, but issued an explosively controversial opinion that addressed dramatically the issue of federal authority over slavery. The Court's opinion stated that African Americans could not be citizens of the United States nor have access to federal courts; that Scott was never a free person because Congres lacked the authority to regulate slavery in the territories; and that slaves were property protected by the Due Process Clauise of the Constitution's Fifth Amendment. This ruling had profound consequenses for the nation. It struck down the Missouri Compromise of 1820 and the Kansas-Nebraska Act of 1854, key components of the sectional compromises worked out by Congress. It greatly increased the tension in the nation between the North and the South and is considered one of the key events that propelled the nation into Civil War. |
| Everson v. Ewing Township Board of Education
(1847)
Decided by a vote of 5 to 4 Basic Rights Conflict: In 1941, the state of New Jersey authorized local school districts to reimburse parents for the cost of transportation to private, not-for-profit schools. Ewing Township covered these transportation expenses to three public schools and four Catholic schools. The annual reimbursement amounted to approximately $80 per child. A taxpayer, Arch Everson, challenged the disbursement of public money in support of religious education and claimed the subsidy violated the Religious Establishment Clause of the First Amendment. Opinion: In a 5 to 4 ruling, a majority in the Supreme Court concluded that the reimbursement supported a legitimate, neutral, secular state interest in providing children with a safe means of travel between school and home. The reimbursement did not violate, in the Court's opinion, the Religious Establishment Clause of the First Amendment because money was paid to the parents rather than directly to parochial schools. In writing for the majority, Justice Hugo Black claimed that to overturn the law would handicap the free exercise of religion. He stated that the First Amendment requires the state to be neutral regarding religion and not its adversary. Dissents written by Justice Robert H. Jackson and Justice Wiley B. Rutledge argued that the subsidy did not improve the safety or expediency of the children's transportation. Rather, in their opinion, public funds were being used to sustain and support religious purposes in violation of the Establishment Clause. Context: The First Amendment states: "Congress shall make no law respecting an establishment of religion." This basic principle stemmed from the strong convictions of many Americans during the American Revolution that government and religion should be strictly separate. It was an especially important issue in Virginia, which in 1624 had required white citizens to attend and support the Church of England with their taxes; all non-members were barred, further more, from holding civil office. By the time of the Revolutionary War, other Protestants groups including Baptists, Methodists, and Presbyterians hoped to disestablish the Anglican Church. James Madison and Thomas Jefferson led the fight. The Virginia Act for Establishing Religious Freedom, written by Thomas Jefferson in 1786, became the basis for Establishment Clause of the First Amendment: "That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burdened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in nowise diminish, enlarge, or affect their civil capacities." Impact/Consequences: Everson was the first religious establishment case argued before the Supreme Court. It is a landmark case because the Court declared that the Establishment Clause of the First Amendment applies to actions of state as well as federal government. Equally important, the Court ruled that the Establishment Clause did more than prohibit a state religion. It required government to adopt a "principle of neutrality" toward religion. The following year the Court determined that the use of tax-supported property for classes coordinated with a religious council constituted a clear violation of the First Amendment (in McCollum v. Board of Education, 1948). In 1952, the Supreme Court ruled 6 to 3 in Zorach v. Clauson (1952) that students could be released from school for religious instruction off school grounds without violating the Religious Establishment Clause. Because both Rhode Island and Pennsylvania offered some forms of financial support to non-public schools, the Supreme Court heard their combined cases in Lemon v. Kurtzman (1971). Chief Justice Warren Burger, writing for the majority, concluded that the states had violated the First Amendment Religious Establishment Clause. He formulated in his opinion a three-prong test for church-state entanglement in decisions about state or federal law: (a) it must have a secular legislative purpose; (b) its primary effect must be one that neither advances nor inhibits religion; and (c) it must not promote an excessive entanglement with religion. The Rehnquist Court was not entirely comfortable with the "Lemon test." Justice Sandra Day O'Connor, for example, modified the test, emphasizing the issue of government endorsement of religion in her Lynch v. Donnelly (1984) opinion. Justice Anthony Kennedy proposed a "coercion test" in his County of Allegheny v. ACLU (1989) dissent--meaning that government cannot coerce individuals in their free exercise of religion. Despite less than total agreement about the Lemon Test, it remains the essential point of discussion on Establishment Clause rulings by the Court. Quotes: "When any school district provides any transportation for public school children to and from school, transportation from any point in such established school route to any other point in such established school route shall be supplied to school children residing in such school district in going to and from school other than a public school, except such school as is operated for profit in whole or in part."
"The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever from they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between Church and State.'" Justice Hugo Black, 1947 Everson v. Board of Education opinion "It is of no importance in this situation whether the beneficiary of this expenditure of tax-raised funds is primarily the parochial school and incidentally the pupil, or whether the aid is directly bestowed on the pupil with indirect benefits to the school. The state cannot maintain a Church and it can no more tax its citizens to furnish free carriage to those who attend a Church. The prohibition against establishment of religion cannot be circumvented by a subsidy, bonus or reimbursement of expense to individuals for receiving religious instruction and indoctrination."
"Does New Jersey's action furnish support for religion by use of the taxing power? Certainly it does, if the test remains undiluted as Jefferson and Madison made it, that money taken by taxation from one is not to be used or given to support another's religious training or belief, or indeed one's own. Today as then the furnishing of 'contributions of money for the propagation of opinions which he disbelieves' is the forbidden exaction; and the prohibition is absolute for whatever measure brings that consequence and whatever mount may be sought or given to that end."
Questions to Ponder:
Selected Bibliography: Alley, Robert S., ed. The Constitution & Religion: Leading Supreme Court Cases on Church and State. (Amherst, NY: Prometheus Books, 1999.) Haynes, Charles C. and Oliver Thomas, eds. Finding Common Ground: A Guide to Religious Liberty in Public Schools. (Nashville, TN: First Amendment Center, 2002.) Levy, Leonard W. The Establishment Clause: Religion and the First Amendment. (Chapel Hill, NC: University of North Carolina Press 1994.) Miller, Robert T. and Ronald B. Flowers. Toward Benevolent Neutrality: Church, State, and the Supreme Court. Fifth ed. (Waco, TX: Baylor University Press, 1996.) Mnookin, Robert H., and D. Kelly Weisberg. Child, Family, and State: Problems and Materials on Children and the Law. 4th ed. (Gaithersburg, MD: Aspen Law & Business, 2000.) van Geel, Tyll. The Courts and American Education Law. (Buffalo, NY: Prometheus Books, 1987.) Gateway Links: |
| Reynolds v. U. S.
(1878)
Decided by a vote of 9 to 0 Conflict: George Reynolds, a high Mormon official, secretary to Brigham Young, was charged with marrying his second wife while he was still married to his first wife. Bigamy was an encouraged practice among some churches of the Mormon faith of the Church of Latter Day Saints.. Polygamy--having more than one spouse at the same time--was illegal pursuant to the federal law as it applied to the Territory of Utah under the Morill Act of 1864. Thus, bigamy--having more than one wife at the same time--was illegal. The Mormons appealed Reynolds conviction in the territorial Supreme Court. Although there were several technical irregularities in the trial court proceedings, the main issue for the Court dealt with a statute that made bigamy illegal. The First Amendment to the U.S. Constitution guaranteed the right to the "free exercise" of religion. But the question before the Court was one of not only faith or beliefs but of actions based upon those beliefs. Was George Reynolds guilty of breaking the law even if his religious beliefs condoned his actions? Opinion: Chief Justice Morrison R. Waite wrote the opinion for the unanimous Court. The Court acknowledged that that in the debate and adoption of the First Amendment it was noted that Congress could not legislate in regard to what a person thought or believed. Congress could not tell people what to believe or not to believe. It also could not tax citizens in support of religion or churches, or set-up a government-sponsored religion. The government could intervene, however, when one's actions interfered with establishing and keeping the public order. In the laws of England (from which our legal system is based), and in the U.S. from colonial times, bigamy was not legal. The government had the right to regulate marriages. From the earliest times laws restricted the rights of marriage to one spouse at a time. The Court used the analogy of human sacrifices to make its point regarding the right of the government to make laws that impacted on behavior, religiously motivated or not. It noted that it would be criminal to make human sacrifices even if one did so as part of a religious ceremony. If Reynolds knew at the time of his second marriage that he was still married to his first wife this knowledge was enough to show his intent to break the law. It was found by the trial court that he was aware of the law against bigamy when he married his second wife. He was not excused from the requirements of the law just because he believed his actions to be sanctified by his church. Nor was he excused from the effects of the law just because he thought it was a bad law. The law was to be applied to all people regardless of their religious beliefs. Context: Reynolds was the first case to go to the Supreme Court to test the extent of the right to the "free exercise" of religion, or the Free Exercise Clause. The case was a "test case," which means it was chosen to set-up the debate at issue: freedom of religion as it related to civil laws. It grew out of the efforts of President U. S. Grant to stamp out Mormon polygamy, rounding up and arresting hundreds of Mormons under a federal antibigamy law. Up to that point, Mormons, who controlled the legislative and executive branches of government in Utah, largely ignored the law against polygamy. Plural marriage had been a central part of Mormon religion and society since Joseph Smith, the founder of the Church of Latter Day Saints, held it to be based on biblical practice and divine revelation. For Mormons, polygamy was a religious duty essential to the well being of family and society. In hope of showing that polygamy did not demean women, the Utah territorial legislature granted women the right to vote, but not to hold public office. Congress responded by passing a statute in 1882 forbidding a male "polygamist" and any woman "cohabitating with any polygamist. . . ," from voting or holding office in federal territories. The fact that Mormon women had voted to support polygamy did not affect the firmness of the Court's position (Maynard v. Hill, 1888 and Murphy v. Ramsey, 1885). In 1890, the Supreme Court reaffirmed that polygamy destroyed "the purity of the marriage relation" even as it "debase[d]" men as well as women. (Late Corporation of the Church of Jesus Christ of Latter-Day Saints v. United States, 1990; and Davis v. Benson, 1890). These decisions by the Court in 1890 ended for all practical purposes any questions about the legality of polygamy. The Mormon Church officially ended polygamy that same year. As a result, Utah became a state in 1896, granting suffrage to women in its state constitution. Impact/Consequences: The Court has made some exceptions in regard to the First Amendment for organized religions, e.g., allowing members of the Amish faith to remove their children from public schooling in the eighth grade (Wisconsin v. Yoder, 1972). The Court has held, however, that some who sought exemptions from the law were not entitled to them. A member of the Air Force could not wear his yarmulke when the uniform policy disallowed it (Goldman v. Weinberger, 1986). Also, the law requires a Native American parent to apply for a social security number for his daughter when requesting government benefits (Bowen v. Roy, 1986). Usually with rights related to marriage, states have the authority to determine what the law is. The Court has determined, however, that states may not refuse to marry interracial couples (Loving v. Virginia, 1967). Currently, the debate centers around the concept of same-sex marriages and how the society does or does not benefit from such unions, and how individual rights are being affected. Some states have, in response to the organized efforts to make same-sex unions legal in all states, passed laws that define marriage as a union between one man and one woman. As the current Supreme Court is "under construction" while with the appointment of two new justices, it is not at all clear how the laws regarding marriage will develop. Speaking constitutionally, the Court's opinion in Reynolds looked beyond the language of the First Amendment to the "original intent" to find that religious practices that go against the public interest cannot be protected. Quotes: "Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African People."
"Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstance."
Questions to Ponder: 1, Should the Supreme Court have the power to limit one's religious actions? How far should that authority extend? 2. Why is it significant that this case developed in Utah? 3. Should the federal government be able to dictate what people in Utah do? 4. Should the legislative bodies of government have any say in religious activities? In what ways should the government limit acts based upon religious beliefs? 5. Who should determine who can get married? Federal government? State government? Churches? 6. Should there be any limitations on who can get married? Should it be limited by age, citizenship, who a person is related to, race, or gender? Selected Bibliography: Coontz, Stephanie. The Social Origins of Private Life: A History of American Families, 1600-1900. London: Verso, 1988. Cresswell, Stephen. Mormons, Cowboys, Moonshiners, and Klansmen: Federal Law Enforcement in the South and West, 1870-1893. 1991. Gordon, Sarah Barringer. The Mormon Church: Polygamy and Constitutional Conflict in the Nineteenth Century America. Chapel Hill: University of North Carolina Press, 2002. Weisbrod, Carol and Pamela Sheingorn, "Reynolds v. United States: Nineteenth-Century Forms of marriage and the Status of Women," Connecticut Law Review 10 (Summer 1978): 828-858. Beecher, Maureen Ursenbach et al. eds., Sisters in Spirit: Mormon Women in Historical and Cultural Perspective. Urbana: University of Illinois Press, 1987. Gateway Links: |
| Schenck v. United States
(1919)
Decided by a vote of 9 to 0 Conflict: In June 1917, as the United States mobilized to enter World War I, Congress passed the Espionage Act, which criminalized interference with the recruitment, enlistment, and discipline of the armed forces. On August 13, Charles T. Schenck (General Secretary of the Socialist Party of Philadelphia) ordered the printing and distribution of 16,000 circulars criticizing America's involvement in World War I, and specifically the use of the draft. The leaflets depicted the war as a wicked capitalist scheme, compared the draft to "involuntary servitude," and urged drafted men to petition Congress to repeal the Conscription Act. Schenck was arrested, tried, and convicted for violating the Espionage Act. He appealed the decision of a federal court in Pennsylvania to the Supreme Court of the United States. Opinion: In a unanimous decision, the Suprme Court concluded that Schenck's political speech was not protected by the First Amendment, and the Court thereby upheld the constitutionality of the Espionage Act. Associate Justice Oliver Wendell Holmes delivered the opinion for the Court. He reasoned that the circumstances in which a speech is made determines the extent to which the First Amendment protects it: "Free speech would not protect a man falsely shouting fire in a theater, and causing a panic." The opinion articulated the "clear and present danger" test for First Amendment speech guarantees. The proximity and degree of danger that words represent to the common good must be considered when determining whether speech is protected or not. The threshold of danger is lower during times of war, higher in times of peace. Context: With Germany's resumption of unrestricted submarine warfare against neutral American ships (February 1) and the added provocation of the Zimmerman Telegram (February 24), President Woodrow Wilson asked Congress for a declaration of war on April 2, 1917. The House of Representatives (by a vote of 373 to 50) and the Senate (by a vote of 82 to 6) approved Wilson's request. The United States formally declared war on Germany on April 6, 1917. The war in Europe, the bloodiest in western history, had been going on for four years with no end in sight when America entered on the side of Britain and France. Wilson had campaigned for re-election in 1912 on the platform of keeping the nation out of the European war, which conformed to the nation's isolationist tradition. When Wilson took the nation to war, tens of thousands of Americans protested. Even his Secretary of State, the venerable reformer and former Populist Party leader, William Jennings Bryan, had earlier resigned from his cabinet seat in protest of Wilson's pro-British actions as president. This opposition continued, moreover, with the passage of the selective service law on May 18, 1917, which forced millions of young men to register for compulsory service in the armed forces. Schenck's circulars struck at this mobilization drive by the government. Ultimately 4 million draftees served in the armed forces, and some 2 million saw duty overseas. By the armistice (November 11, 1918), roughly 72 percent of the men in the military were draftees. The Socialist Party of America had approximately 100,000 active members drawn from labor unions, immigrants, and reformers at the start of WWI. In 1912, its presidential candidate, Eugene V. Debs, a labor organizer who led the Pullman strike in 1894, had garnered around 900,000 votes, or 6 percent of the total. It counted as party members two representatives in the U.S. Congress, over 70 mayors, and hundreds of state legislators and city and local government officials. Although the Socialist Party split over the war, its long-time leader Eugene V. Debs led the anti-war wing of the party. He was jailed in 1918 for inciting disloyalty and mutiny as well as for obstructing military recruitment when he spoke these words to an audience of supporting listeners: "You need to know that you are fit for something better than slavery and cannon fodder." (Debs v. United States, 1919) Impact/Consequences: For his offenses, Charles T. Schenck served six months in prison. Associate Justice Oliver Wendell Holmes, who established the "falsely shouting fire" and "clear and present danger" test for free speech, soon backed away from his interpretation when the government began arresting peacetime critics of government policies. In these cases, he insisted that the "present danger" must relate to a clearly immediate evil and a specific action (Abrams v. United States, 1919). In 1927, in Whitney v. California, the Supreme Court broadened the test for non-protected political speech from "clear and present danger" to a "bad tendency" test. As a consequence of Brandenburg v. Ohio (1969), the test was again narrowed to "imminent lawless action." Quotes: "...whoever, when the United States is at war, shall wilfully cause or attempt to cause insubordination, disloyalty, mutiny or refusal of duty in the military or naval forces of the United States, or shall wilfully obstruct the recruiting or enlistment service of the United States, to the injury of the service or of the United States, shall be punished by a fine of not more than $10,000, or imprisonment for not more than twenty years, or both."
"No power was delegated to send our citizens away to foreign shores to shoot up the people of other lands, no matter what may be their internal or international disputes. The people of this country did not vote in favor of war. In the last election they voted against war. To draw this country into the horrors of the present war in Europe, to force the youth of our land into the shambles and bloody trenches of war-crazy nations would be a crime the magnitude of which defies description. Words could not express the condemnation such cold-blooded ruthlessness deserves. Will you stand idly by and see the Moloch of Militarism reachforth across the sea and fasten its tentacles upon this continent? Are you willing to submit to the degradation of having the Constitution of the United States treated as a mere scrap of paper?"
"But how can a speaker or writer be said to be free to discuss the actions of the Government if twenty years in prison stares him in the face if he makes a mistake and says too much? Severe punishment for sedition will stop political discussion as effectively as censorship."
"But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force."
"The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right."
Questions to Ponder:
Selected Bibliography: Hentoff, Nat. Free Speech for Me--But Not for Thee. (New York: HarperCollins, 1992.) Irons, Peter. May It Please the Court: The First Amendment. (New York: The New Press, 1997.) Mauro, Tony. Illustrated Great Decisions of the Supreme Court. (Washington, DC: CQ Press, 2000.) Nowak, John, and Ronald D. Rotunda. Constitutional Law, 6th ed., Hornbook Series. (St. Paul, MN: West Group, 2000.) Rehnquist, William H. All The Laws But One: Civil Liberties in Wartime. (New York: Vintage Books, 2000.) Stone, Geoffrey R. Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to The War on Terrorism. (New York: W.W. Norton & Company, Inc., 2004.) Tribe, Laurence M. American Constitutional Law, 3rd ed., University Textbook Series. (St. Paul, MN: West Publishing Company, 1999.) Gateway Links: |
| Gitlow v. New York
(1925)
Decided by a vote of 7 to 2 Conflict: New York resident Benjamin Gitlow was a member of the left-wing section of the Socialist Party whose advocacy of violence had caused it to split from the main American Socialist Party in September 1919. He wrote The Left Wing Manifesto and helped to distribute 16,000 copies of The Revolutionary Age newspaper, both of which promoted the victory of socialism by class action "in any form," including labor strikes. Gitlow traveled around New York publicly advocating revolution. Gitlow was arrested in November 1919, tried and convicted under New York's 1902 Criminal Anarchy Law, which made it a felony to advocate the violent overthrow of the government either "by word of mouth or writing." He served three years at hard labor in Sing-Sing Prison (Ossining, New York) before being released in 1922. Benjamin Gitlow ran for mayor of New York City (1921) on the Communist Party ticket and appealed to the Supreme Court to overturn his conviction. Opinion: By a 7 to 2-majority vote, the Supreme Court upheld Gitlow's conviction, holding that his actions threatened the "foundations of government." It ruled that Gitlow's pamphlet, while it did not immediately cause criminal action was like a "revolutionary spark" that might later burst into a "sweeping and destructive conflagration." Associate Justices Oliver Wendell Holmes, Jr. and Louis Brandeis offered strong dissents. They claimed that Gitlow's Manifesto had no chance of inciting criminal action. The nation was not at war. They objected to punishing expression rather than action, and they argued that the "clear and present danger" doctrine for judging the legality of speech was the best protection of First Amendment rights. Although upholding Gitlow's conviction, the Court surprisingly agreed with Gitlow's lawyers that the protections of basic rights afforded by the Bill of Rights should be applicable to the states under the Fourteenth Amendment. This landmark decision became known as the doctrine of "incorporation." Context: A number of factors came together in the early 1920s that provoked a near hysterical, anti-socialist fervor among many Americans. The Russian Revolution and the emergence of a communist Soviet Union, seemingly dedicated to exporting revolution around the world, convinced many Americans that a worldwide plot aimed at overthrowing democracy and capitalism was in the making. Business leaders had long equated labor unionization with "bolshevism." Entrenched political leaders won political advantage by characterizing leftist and progressive reformers as radicals or bomb-throwing anarchists. At the same time, many of the nation's citizens were virulently opposed to foreign immigration from Eastern Europe. They looked on the new immigrants as un-American socialists, a perspective informed by the anti-foreign propaganda unleashed during World War I. Not to be forgotten, the Wilson Administration had cracked down hard on anti-war agitators, many of whom were radical socialists, such as Eugene Debs, the leader of the Socialist Party, who had been jailed for opposing the war and selective service. Certainly, there were violent incidents, the most disturbing of which was the May Day bombing campaign in 1919, when explosives were mailed to 38 prominent politicians and business figures; and an Italian anarchist had attempted to bomb Attorney General A. Mitchell Palmer's home. Labor unrest had disrupted life across America, with over four million workers involved in 3,630 strikes or lockouts. From the Seattle general strike in February to national strikes by steelworkers and coal miners, to a Boston police officers' strike in autumn 1919, no portion of the nation was free from strife. This environment of unrest triggered the so-called Red Scare of 1919. In August 1919, Attorney General A. Mitchell Palmer created a General Intelligence Division (now the FBI) to investigate the threat by communism and socialism to America. Cloaked in the authority of law, Palmer began wire-tapping and gathering information on all known radicals in the nation; between November 1919 and May 1920, the federal government launched a sweeping program of raids, which led to the arrest of 6,000 persons. Over 800 detainees were deported, many of whom had been denied due process and appear to have been innocent victims of guilt-by-association. When Palmer's predictions of mass violence on May Day 1920 failed to materialize, he was discredited, even though a September bomb blast killed 38 people on Wall Street in New York City. The expulsion by the New York Legislature of five duly elected members because they were socialists led mainstream political leaders such as Al Smith and former Supreme Court Justice Charles Evens Hughes to condemn the anti-communist hysteria. Impact/Consequences: This is a landmark case because it is the first time that the Fourteenth Amendment's Due Process Clause applied the Bill of Rights to the states, known as the "incorporation" doctrine. The decision in Gitlow protected First Amendment guarantees of freedom of speech and the press from curtailment by the states. In 1931, the Court ruled a state law unconstitutional as a violation of free speech as protected by the Constitution (Stromberg v. California). In December 1925, New York Governor Al Smith pardoned Gitlow as "punished enough." Benjamin Gitlow ran for Vice President of the United States on the Communist Party ticket in both 1924 and 1928, but in 1939 he repudiated the Communist Party and spoke out against it until his death in 1965. This case is also important because of Justice Holmes's articulate dissent in favor of the "clear and present danger" test for judging the criminality of speech. The Supreme Court eventually embraced this doctrine, or test, in the 1960s. Quotes: "Criminal anarchy is the doctrine that organized government should be overthrown by force or violence, or by the assassination of the executive head or of any executive officials of the government, or by unlawful means. The advocacy of such doctrine either by word of mouth or writing is a felony."
"The final objective of mass action is the conquest of the power of the state, the annihilation of the bourgeois parliamentary state and the introduction of the transition proletarian state, functioning as a revolutionary dictatorship of the proletariat."
"The Constitution applies impartially. No discrimination can be based upon either the citizenship or the personal character or views of the person who asserts constitutional rights. An enemy of cherished institutions does not become ipso facto an outlaw, nor is he estopped to assert his equality before the law, whatever opinion may be entertained as to the quality or his use of it."
"By enacting the present statute the State has determined, through its legislative body, that utterances advocating the overthrow of organized government by force, violence, and unlawful means, are so inimical to the general welfare, and involve such danger of substantive evil that they may be penalized in the exercise of its police power. We cannot hold that the present statute is an arbitrary or unreasonable exercise of the police power of the State unwarrantably infringing the freedom of speech or press; and we must and do sustain its constitutionality."
"For present purposes we may and do assume that freedom of speech and of the press--which are protected by the First Amendment from abridgment by Congress--are among the fundamental personal rights and liberties protected by the due process clause of the Fourteenth Amendment from impairment by the States."
"If what I think the correct test is applied it is manifest that there was no present danger of an attempt to overthrow the government by force on the part of the admittedly small minority who shared the defendant's views. It is said that this manifesto was more than a theory, that it was an incitement. Every idea is an incitement. It offers itself for belief and if believed it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth."
Questions to Ponder:
Selected Bibliography: Hentoff, Nat. Free Speech for Me--But Not for Thee. (New York: HarperCollins, 1992.) Irons, Peter. May It Please the Court: The First Amendment. (New York: The New Press, 1997.) Josephson, Harold. "Political Justice During the Red Scare: The Trial of Benjamin Gitlow," in American Political Trials, ed. Michal R. Belknap. (Westport, Conn.: Greenwood Press, 1981.) Mauro, Tony. Illustrated Great Decisions of the Supreme Court. (Washington, DC: CQ Press, 2000.) Nelson, William E. The Fourteenth Amendment: From Political Principle to Judicial Doctrine. (Massachusetts, London: Harvard University Press, 1988.) Nowak, John, and Ronald D. Rotunda. Constitutional Law, 6th ed., Hornbook Series. (St. Paul, MN: West Group, 2000.) Rehnquist, William H. All The Laws But One: Civil Liberties in Wartime. (New York: Vintage Books, 2000.) Stone, Geoffrey R. Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to The War on Terrorism. (New York: W.W. Norton & Company, Inc., 2004.) Tribe, Laurence M. American Constitutional Law, 3rd ed., University Textbook Series. (St. Paul, MN: West Publishing Company, 1999.) Gateway Links: |
| U. S. v. Harriss
(1954)
Decided by a vote of 5 to 3 Conflict: Robert Harriss, a cotton broker belonging to the New York Cotton Exchange, was indicted for violating the 1946 Federal Regulation of Lobbying Act. He was accused of hiring persons to lobby Congress without registering as lobbyists with the House and Secretary of the Senate. He conviction on multiple counts was overturned by the appellate court, which ruled the Act unconstitutionally vague. The government appealed to the United States Supreme Court. Opinion: In 5 to 3 decision, the Supreme Court upheld the constitutionality of the Federal Regulation of Lobbying Act. The majority was reluctant to entirely overturn a law passed by Congress and ruled narrowly on a few pertinent passages of the Act. The majority opinion effectively "rewrote" passages of the Act so that it applied only to individuals whose "principal purpose" was to influence legislation and who directly contacted members of Congress. Dissenters believed the Act violated the Due Process Clause of the Fourteenth Amendment because it was so vague, and believed Congress had violated the First Amendment's prohibition that "Congress shall make no law ... abridging the freedom of speech, or of the press, or the right of the people ... to petition the Government for redress of grievances." Context: In the 1930s, to combat corruption and bribery, Congress passed piecemeal legislation regulating lobbyists by specific interest groups such as the maritime industry or foreign countries. In 1946, it attempted to pass a more comprehensive Congressional lobbying law; however, little was said during hearings and the law itself was only four pages long. It required that any person hired for the purpose of lobbying Congress be registered and also provide quarterly financial reports of lobbying expenditures. Robert Harriss was an outspoken political thinker and personality. He was a financial advisor to Father Charles E. Coughlin, a conservative and widely popular radio commentator in the 1930s. Harriss, like Coughlin, was highly critical of President Franklin Roosevelt's New Deal programs and an outspoken opponent of the Federal Reserve Bank. He was also a member of the America First Party, an isolationist organization, which opposed entry into World War II. Impact/Consequences: Although the Supreme Court upheld the constitutionality of the Federal Regulation of Lobbying Act, the decision (along with the original vague wording) created huge loopholes, which special interest groups have exploited. Some claim their principal purpose is not lobbying, so do not register. Others use their own money, so do not solicit money for their lobbying. Other lobbyists contact congressional aides rather than elected representatives directly, continuing to wield their influence. Lobbying efforts, which orchestrate public e-mail or writing campaigns are not covered by the act. Despite criminal penalties for noncompliance, there are no means for enforcement. After nearly 50 years of struggling with the unenforced and unenforceable 1946 Act, Congress replaced it with the Lobbying Disclosure Act of 1995. Quotes: "Any person who shall engage himself for pay or for any consideration for the purpose of attempting to influence the passage or defeat of any legislation by the Congress of the United States shall, before doing anything in furtherance of such object, register with the Clerk of the House of Representatives and the Secretary of the Senate and shall give to those officers in writing and under oath, his name and business address, the name and address of the person by whom he is employed, and in whose interest he appears or works, the duration of such employment, how much he is paid and is to receive, by whom he is paid or is to be paid, how much he is to be paid for expenses, and what expenses are to be included. Each such person so registering shall, between the first and tenth day of each calendar quarter, so long as his activity continues, file with the Clerk and Secretary a detailed report under oath of all money received and expended by him during the preceding calendar quarter in carrying on his work; to whom paid; for what purposes; and the names of any papers, periodicals, magazines, or other publications in which he has caused to be published any articles or editorials; and the proposed legislation he is employed to support or oppose."
"Thus construed, 305 and 308 also do not violate the freedoms guaranteed by the First Amendment--freedom to speak, publish, and petition the Government. Present-day legislative complexities are such that individual members of Congress cannot be expected to explore the myriad pressures to which they are regularly subjected. Yet full realization of the American ideal of government by elected representatives depends to no small extent on their ability to properly evaluate such pressures. Otherwise the voice of the people may all too easily be drowned out by the voice of special interest groups seeking favored treatment while masquerading as proponents of the public weal. This is the evil which the Lobbying Act was designed to help prevent."
"I am in sympathy with the effort of the Court to save this statute from the charge that it is so vague and indefinite as to be unconstitutional. My inclinations were that way at the end of the oral argument. But further study changed my mind. I am now convinced that the formula adopted to save this Act is too dangerous for use. It can easily ensnare people who have done no more than exercise their constitutional rights of speech, assembly, and press."
"The First Amendment forbids Congress to abridge the right of the people 'to petition the Government for a redress of grievances.' If this right is to have an interpretation consistent with that given to other First Amendment rights, it confers a large immunity upon activities of persons, organizations, groups and classes to obtain what they think is due them from government. Of course, their conflicting claims and propaganda are confusing, annoying and at times, no doubt, deceiving and corrupting. But we may not forget that our constitutional system is to allow the greatest freedom of access to Congress, so that the people may press for their selfish interests, with Congress acting as arbiter of their demands and conflicts."
Questions to Ponder:
Selected Bibliography: Mark, Gregory A., "The Vestigial Constitution: The History and Significance of the Right to Petition," 66 Fordham Law Review 2153 (1998) Nowak, John, and Ronald D. Rotunda. Constitutional Law, 6th ed., Hornbook Series. (St. Paul, MN: West Group, 2000.) Higginson, Stephen A., "A Short History of the Right to Petition Government for the Redress of Grievances," 96 Yale Law Journal 142 (1986) Tribe, Laurence M. American Constitutional Law, 3rd ed., University Textbook Series. (St. Paul, MN: West Publishing Company, 1999.) Gateway Links: |
| NAACP v. Alabama ex. rel Patterson
(1958)
Decided by a vote of 9 to 0 Conflict: Following World War II, the National Association for the Advancement of Colored People (NAACP) campaigned actively for African-American voting rights and the end of segregation. In an attempt to thwart the group, Alabama in 1956 invoked its Foreign Corporation Qualification Law against the NAACP, because it was incorporated in New York. Alabama's Attorney General, John M. Patterson, required the NAACP to submit corporate information and membership lists, including the names and addresses of each person in Alabama who belonged to the organization. The NAACP refused to comply, fearing for the safety of its members. Attorney General Patterson then initiated proceedings in the State Circuit Court of Montgomery County to oust the NAACP from Alabama. Patterson claimed that the NAACP, through its actions in the Montgomery bus boycott (sparked by Rosa Parks) and its effort to enroll students in public universities, was "causing irreparable injury to the property and civil rights of the residents and citizens of the State of Alabama for which criminal prosecution and civil actions at law afford no adequate relief." The State Circuit Court of Montgomery County issued a restraining order prohibiting the NAACP from operating in Alabama. The NAACP appealed to the United States Supreme Court. Opinion: The Supreme Court unanimously ruled that the civil contempt citation was unconstitutional because the NAACP had a right to associate. Disclosure of the membership lists would threaten that right. Although the U.S. Constitution and Bill of Rights do not specifically contain the words "right of association," the First Amendment's right "peaceably to assemble" and the "liberty" guaranteed by the Fourteenth Amendment's Due Process Clause embrace freedom to associate. Context: The National Association for the Advancement of Colored People (NAACP) was first incorporated as a non-profit membership corporation in New York. The purpose of the NAACP was to advocate for improvement of the civil rights and welfare of African Americans. It spread across the country through affiliate groups, including to Alabama in 1918. The first Supreme Court case to consider the right to peaceful assembly was United States v. Cruikshank (1875). In his opinion, Chief Justice Morrison Waite eloquently declared, "The right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances, or for any thing else connected with the powers or the duties of the national government, is an attribute of national citizenship, and, as such, under the protection of, and guaranteed by, the United States. The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances." Ironically, the association the Supreme Court protected by this ruling was that of nearly 100 members of the Ku Klux Klan, including Cruikshank, who had interrupted a meeting of African-American citizens. The Klansmen had been indicted under the Reconstruction-era Enforcement Act on charges of having deprived African-American citizens of their right to assemble together peaceably with other citizens "for a peaceful and lawful purpose." The Supreme Court found Cruikshank's indictment inadequate on the grounds that there was no federal purpose to the interrupted meeting. While upholding the Peaceful Assembly Clause in Cruikshank, the Court did not assert a constitutional freedom to associate. In a twist of fate, that would come with NAACP v. Alabama (1958). Impact/Consequences: Because the Supreme Court ruled, in part, that the Supreme Court of Alabama had jurisdiction to hear the NAACP's appeal of the contempt citation, the Supreme Court of Alabama heard the case and reinstated the lower court's contempt citation. The NAACP appealed to the United States Supreme Court and it overturned the contempt citation a second time in NAACP v. Alabama (1959). Then, the NAACP attempted to get a court hearing on the retraining order and Alabama's efforts to expel the organization from the state. Failing to get a hearing in state courts, it went to the federal District Court and Court of Appeals, and finally appealed to the United States Supreme Court for a third time in NAACP v. Gallion (1961). The Supreme Court ordered Alabama to hear the case on the restraining order by January 1, 1962 or it would be assigned to the Federal District Court. The case went to trial in Alabama in December 1961. The State Circuit Court of Montgomery ruled that the NAACP had continued to do business in Alabama during the five years of its "temporary" ban, so permanently barred it from operating in Alabama. This judgment was affirmed by the Alabama Supreme Court, and the NAACP appealed for a fourth time to the United States Supreme Court. Finally, in the Supreme Court overturned the permanent expulsion of the NAACP from Alabama and ordered the Alabama Supreme Court to oversee the qualification process so that the NAACP could operate legally in Alabama (NAACP v. Alabama ex rel. Flowers, 1964) The Supreme Court made it clear it would take matters into its own hands if Alabama sent the case back to it again. After eight years of delay, Alabama complied and the NAACP again operated legally in the state of Alabama. The NAACP appealed for help from the Supreme Court in states other than Alabama. In Bates v. Little Rock (1960) the Court ruled that the Arkansas tax offices had no right to NAACP membership roles; in Shelton v. Tucker (1960) it also ruled Arkansas could not force teachers to file affidavits listing organizations in which they had membership, a rule designed to identify NAACP members. A 1956 Virginia law prohibiting lawyers from seeking clients targeted NAACP lawyers; the Court struck down the law in NAACP v. Button (1963). In the same year, the Supreme Court struck down investigations of NAACP membership roles by a Communist-hunting committee of the Florida legislature in Gibson v. Florida Legislative Investigative Committee (1963). The Court found in Shuttlesworth v. Birmingham (1969) that a community could not use vagueness on permits to thwart a peaceful march by the NAACP. Beyond the NAACP, other challenges to the civil rights movement helped shape the "right of association." Edwards v. South Carolina (1963), arising from the arrests of peaceful student demonstrations against segregation, upheld the right to peaceful assembly on public property. In Cox v. Louisiana (1965), a case involving a demonstration supporting civil rights, the Supreme Court ruled that courthouses were locales where the right of peaceful assembly was guaranteed. The right to peaceful assembly and association continues to be shaped, as in the past, by groups, some of whom we find to be sympathetic, but also those who are controversial. Quotes: "Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly. It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the "liberty" assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech. Of course, it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters, and state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny."
"It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on freedom of association as the forms of governmental action in the cases above were thought likely to produce upon the particular constitutional rights there involved. This Court has recognized the vital relationship between freedom to associate and privacy in one's associations.... Compelled disclosure of membership in an organization engaged in advocacy of particular beliefs is of the same order. Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs."
"...on past occasions revelation of the identity of its rank-and-file members has exposed these members to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility. Under these circumstances, we think it apparent that compelled disclosure of petitioner's Alabama membership is likely to affect adversely the ability of petitioner and its members to pursue their collective effort to foster beliefs which they admittedly have the right to advocate, in that it may induce members to withdraw from the Association and dissuade others from joining it because of fear of exposure of their beliefs shown through their associations and of the consequences of this exposure."
Questions to Ponder:
Selected Bibliography: Abernathy, M. Glenn. The Right of Assembly and Association, 2nd ed. (Columbia, SC: University of South Carolina Press, 1981.) Kurland, Philip B., ed. Free Speech and Association: The Supreme Court and the First Amendment. (Chicago: University of Chicago Press, 1975). Mauro, Tony. Illustrated Great Decisions of the Supreme Court. (Washington, DC: CQ Press, 2000.) McWhirter, Darien A. Exploring the Constitution Series: Freedom of Speech, Press, and Assembly. (Phoenix, AZ: The Oryx Press, 1994.) Nowak, John, and Ronald D. Rotunda. Constitutional Law, 6th ed., Hornbook Series. (St. Paul, MN: West Group, 2000.) Tribe, Laurence M. American Constitutional Law, 3rd ed., University Textbook Series. (St. Paul, MN: West Publishing Company, 1999.) Gateway Links: |
| NY Times v. Sullivan
(1964)
Decided by a vote of 9 to 0 Conflict: On Tuesday, March 29, 1960, the New York Times published a full-page editorial advertisement by the Committee to Defend Martin Luther King entitled "Heed Their Rising Voices." The ad was intended to raise money for the defense of the Rev. Dr. Martin Luther King, Jr. (who had been jailed for allegedly filing false state income-tax returns in Alabama and was facing up to ten years in prison if convicted.) Descriptions of the civil rights protests in the ad included inaccurate statements about the civil rights situation in Montgomery, Alabama. On the day the advertisement was published, only 394 people living in Alabama received the New York Times; of that number, only 35 lived in Montgomery. Although not specifically named in the ad, L. B. Sullivan, the city commissioner of police for Montgomery, wrote a letter on April 8 asking the Times to retract the ad based on what he considered false statements of fact that libeled him. He objected to the statements that "truckloads of police armed with shotguns and tear gas ringed the Alabama State College Campus;" that Martin Luther King, Jr., had been assaulted in "unprecedented wave of terror" against blacks in Montgomery; and that students were expelled from Alabama State College for demonstrating at the lunch counter of the Montgomery County Courthouse (rather than at the State Capitol). When the newspaper declined to retract the ad, as it pertained to Sullivan, he sued the New York Times for libel. The case was heard in the Circuit Court of Montgomery, Alabama. The all-white Alabama jury out over a courtroom where observers were seated in segregated sections. They were presided over by a judge who praised "white man's justice" from the bench. Under Alabama law, Sullivan only had to convince the jury that he had suffered injury to his reputation by false statements of facts. Not surprisingly, they found the ad libelous and awarded Sullivan a $500,000 libel judgment per defendant. (Sullivan immediately began collecting the judgment from a Times co-defendant, Rev. Ralph Abernathy, co-leader with King of the Civil Rights Movement in Alabama, seizing his old Buick and land and auctioning them off.) When the Supreme Court of Alabama upheld the judgment on August 30, 1962, the newspaper appealed to the Supreme Court in New York Times v. Sullivan (1964). Opinion: In a unanimous decision, the Supreme Court overturned the libel judgment. The Court declared that public officials were not protected from defamatory remarks unless it could be proved that they were made with "actual malice"--knowing that the remarks were false and publishing them with "reckless disregard" of their falsity. The justices determined that First Amendment protections of free speech and press limited "a state's power to award damages in a libel action brought by a public official against critics of his official conduct." Sullivan overturned the precedent of Chaplinsky v. New Hampshire (1942), a decision in which the Court had held that libel fell outside constitutionally protected free speech. This ruling distinguished between public figures and private individuals, saying that the former are fair game to vigorous and robust criticism in the interests of democracy and a free and open society. It also required that the intention of malice be demonstrated before damages could be awarded in libel suits filed by public officials. Proving simple falsehood or negligence in reporting alleged facts is not enough to prove libel in the case of public officials. Context: The advertisement cost $4,800 to place in the New York Times and originated with long-time labor and civil rights advocate, A. Philip Randolph, the fighting founder of the Brotherhood of Sleeping Car Porters. The libel suit against New York Times was not an isolated event. It occurred at the height of the civil rights movement in the nation, and it was a coordinated effort to slow its progress. Segregationists had correctly anticipated that when Americans read about the use of water hoses and tear gas, lockouts and fire-bombings, and other physical attacks by white racists on civil rights demonstrators, public opinion would swing against them, forcing Congress to enact civil rights legislation. To block such negative publicity, they orchestrated a systematic libel campaign to win huge damage awards from sympathetic southern juries and judges, hoping thereby to bankrupt or financially damage those newspapers and other media running pro-civil rights stories and news. Prior to Sullivan, there were $300 million in outstanding libel suits against the Times and its co-defendants related to the "Heed Their Rising Voices" advertisement alone. Justice Hugo Black noted in his opinion that, "briefs before us show that in Alabama there are now pending eleven libel suits by local and state officials against the Times seeking $5,600,000, and five such suits against the Columbia Broadcasting System seeking $1,700,000." Impact/Consequences: The New York Times v. Sullivan is a landmark case because it clearly states that public officials are not protected from critical speech or press about them under the guise of libel, even if the defamatory information proved to be false. The Court's opinion held that because erroneous statements are inevitable in public debate, any laws or court actions that stifled such debate violated the principles protected by the First Amendment. Any rule that would force a speaker or publisher to absolutely verify the facts of everything said would have a "chilling effect" on public discourse. This ruling revolutionized the law of libel as it applied to public officials. A few years later, in Curtis Publishing Company v. Butts (1967), and The Associated Press v. Walker (1967), the Court extended the protection to speech and publications that defamed public figures, like movie stars, athletes, and well-know industrialists. The key issue here is the public character of the person criticized or discussed in speech or the press. The Supreme Court drew the line, however, on defamatory speech directed at private individuals in Gertz v. Welch (1974). The sharply divided opinion of the Court was more protective of private persons on the grounds that they are less able to rebut false statements and are thus more easily damaged. Damages can be awarded to private individuals when publishers act negligently by not checking the facts. Unlike with public figures and officials, the burden of malice need not be proven. The Supreme Court's unanimous opinion made it clear that libel could not be used as a political weapon against freedom of speech and the press. The immediate impact would be the continued coverage by newspapers, radio, and television of the civil rights movement, and the continued exposure of brutal retaliation by segregationists against non-violent African-American protesters. (Even before Sullivan, on May 28, 1960 an all-white jury acquitted Dr. King of tax evasion, thanks to a top-notch defense team paid for, in part, by those who saw the ad in the New York Times.) Because the media could report and Americans could see events unfolding, public opinion changed and political leaders were able to begin dismantling Jim Crow segregation laws and practices by extending the vote and other civil rights to African Americans. Sullivan's impact on the free exchange of information and ideas was not confined to the civil rights movement but dispersed into American culture as citizens transformed their access to information and a broadened public debate into empowerment to think, speak, and act more vigorously. Quotes: "In Montgomery, Alabama, after students sang 'My Country, 'Tis of Thee' on the State Capitol steps, their leaders were expelled from school, and truckloads of police armed with shotguns and tear-gas ringed the Alabama State College Campus. When the entire student body protested to state authorities by refusing to re-register, their dining hall was padlocked in an attempt to starve them into submission."
"This lawsuit arose because of a willful, deliberate and reckless attempt to portray in a full-page newspaper advertisement, for which the Times charged and was paid almost $5,000, rampant, vicious, terroristic, and criminal police action in Montgomery, Alabama, to a nationwide public of 650,000. The goal was money-raising. Truth, accuracy, and long-accepted standards of journalism were not criteria for the writing or publication of this advertisement."
"The general proposition that freedom of expression upon public questions is secured by the First Amendment has long been settled by our decisions... Thus we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. The present advertisement, as an expression of grievance and protest on one of the major public issues of our time, would seem clearly to qualify for the constitutional protection. The question is whether it forfeits that protection by the falsity of some of its factual statements and by its alleged defamation of respondent... The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice'--that is, with knowledge that it was false or with reckless disregard of whether it was false or not."
"The half-million-dollar verdict does give dramatic proof, however, that state libel laws threaten the very existence of an American press virile enough to publish unpopular views on public affairs and bold enough to criticize the conduct of public officials... Moreover, this technique for harassing and punishing a free press--now that it has been shown to be possible--is by no means limited to cases with racial overtones; it can be used in other fields where public feelings may make local as well as out-of-state newspapers easy prey for libel verdict seekers. In my opinion the Federal Constitution has dealt with this deadly danger to the press in the only way possible without leaving the free press open to destruction--by granting the press an absolute immunity for criticism of the way public officials do their public duty... An unconditional right to say what one pleases about public affairs is what I consider to be the minimum guarantee of the First Amendment. I regret that the Court has stopped short of this holding indispensable to preserve our free press from destruction."
"This is not to say that the Constitution protects defamatory statements directed against the private conduct of a public official or private citizen. Freedom of press and of speech insures that government will respond to the will of the people and that changes may be obtained by peaceful means. Purely private defamation has little to do with the political ends of a self-governing society ... I strongly believe that the Constitution accords citizens and press an unconditional freedom to criticize official conduct. It necessarily follows that in a case such as this, where all agree that the allegedly defamatory statements related to official conduct, the judgments for libel cannot constitutionally be sustained."
Questions to Ponder:
Selected Bibliography: Hentoff, Nat. Living the Bill of Rights: How to Be an Authentic American. (Berkeley, CA: University of California Press, 1998.) Hall, Kermit. "Cultural History & the First Amendment: New York Times v. Sullivan & Its Times." In Constitutionalism & American Culture: Writing the New Constitutional History, eds. Sandra F. Vanburkleo, et al. (Lawrence, KS: University Press of Kansas, 2002.) Hopkins, W. Wat. Actual Malice: Twenty-five Years After Times v. Sullivan. (Westport, CT: Greenwood Publishing Group, 1989.) Lewis, Anthony. Make No Law: The Sullivan Case & the First Amendment (New York: Random House, 1991.) Mauro, Tony. Illustrated Great Decisions of the Supreme Court. (Washington, DC: CQ Press, 2000.) Nowak, John, and Ronald D. Rotunda. Constitutional Law, 6th ed., Hornbook Series. (St. Paul, MN: West Group, 2000.) Parker, Richard A., ed. Free Speech on Trial: Communications Perspectives on Landmark Supreme Court Decisions. (Tuscaloosa, AL: University of Alabama Press, 2003.) Tribe, Laurence M. American Constitutional Law, 3rd ed., University Textbook Series. (St. Paul, MN: West Publishing Company, 1999.) Gateway Links: |
| Brandenburg v. Ohio
(1969)
Decided by a vote of 8 to 0 Conflict: Ku Klux Klan leader Clarence Brandenburg invited a television reporter and cameraman from Cincinnati to film a rally of a dozen hooded and armed Klansmen at a farm in Hamilton County, Ohio. Prosecutors viewing the film charged Brandenburg's advocacy of racial strife with violating a 1919 Ohio Criminal Syndicalism law, which made it a felony to advocate "sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform." He was convicted in December 1966, fined $1,000, and sentenced to prison for one to ten years. Brandenburg's conviction was sustained by an appellate court, and dismissed without opinion by the Ohio Supreme Court, so he appealed to the United States Supreme Court. Opinion: In Brandenburg v. Ohio, the Court overturned Brandenburg's conviction, holding that neither advocacy of violence nor potential future danger was sufficient to limit free speech. The opinion was delivered "per curiam" (an opinion rendered by the whole Court), although it is believed to have been authored either by Justice Abe Fortas (who resigned prior to the announcement of the decision) or Justice William J. Brennan. In formulating its opinion, the Court accepted much of Justice Oliver Wendell Holmes's reasoning about separating content of speech from actions, the importance of a real and "imminent" threat rather than speculation about possible threats, and the application of a "clear and present danger" test rather than the "bad tendency" test. The Court drew principally on Holmes and on the idea of "lawless action" distinct from words and thought as developed by appellate judge Learned Hand. The Court implemented a new "incitement test" requiring a) that the speech advocate "imminent lawless action," and b) that it would be "likely" to incite or produce imminent lawless action. Context: In Whitney v. California (1927) the Supreme Court had created the "bad tendency" test, which allowed the government to restrict or prohibit speech that tended "to incite crime, disturb the public peace, or endanger the foundations of organized government." This precedent had stood for 32 years and was treated by lower courts as "established law," (one of the reasons why the Ohio Supreme Court dismissed Brandenburg's appeal without even writing an opinion.) But the Court had been reformulating its stand on Whitney in a number of cases leading up to Brandenburg. During the Vietnam War, the Court held unconstitutional the refusal of the Georgia House of Representatives to seat Julian Bond because he had criticized the war and the draft (Bond v. Floyd, 1966). The issue before the Court in Brandenburg had to do with whether, and in what circumstances, a person could be punished, within the Constitution, for expressly advocating criminal conduct. Impact/Consequences: In Brandenburg v. Ohio, the Supreme Court specifically overturned that 32-year precedent, deciding that government could abuse the "bad tendency" test too easily. This decision came exactly 50 years after Schenck. The Court created a new test, the "incitement test" in its place, which limits the punishment of subversive speech even in times of war to specific conditions: the speech must specifically advocate violation of the law; it must call for immediate illegal action; and the illegal action must be likely to occur. In this one landmark decision, the Court effectively overturned with Brandenburg 50 years of precedent regarding free speech: see Schenck, Frohwerk, Debs, Gilbert, Schaefer, Aframs, Gitlow, Whitney, and Dennis. The Brandenburg "incitement test" is today the standard by which the nation's courts determine whether or not the First Amendment protects inflammatory speech. Because few such inflammatory speech cases have come to the Supreme Court since the 1970s, it is unclear how Brandenburg will fare in the minds of present or future Justices of the Court. Additionally, because the test was not applied to subversive speech during war, it is unclear whether the present or future Court will use Brandenburg as a binding precedent. The resistance, nevertheless, of the Court to claims of national security over basic rights suggests that it does not bow easily to executive authority. For example, the Court unanimously rejected the attempt by Attorney General John Mitchell to authorize electronic surveillance without a court order of "domestic organizations that seek to subvert the government by unlawful means" (Dellinger v. Mitchell, 1971). It is important, however, to think about this issue with a note of caution, because almost every time the nation's security has been threatened, its First Amendment freedoms have been curtailed. Whether or not Brandenburg has erected "fortress" around core political speech remains to be seen. Quotes: "Yet to assimilate agitation, legitimate as such, with direct incitement to violent resistance, is to disregard the tolerance of all methods of political agitation which in normal times is a safeguard of free government. The distinction is not a scholastic subterfuge, but a hard-bought acquisition in the fight for freedom, and the purpose to disregard it must be evident when the power exists. If one stops short of urging upon others that it is their duty or their interest to resist the law, it seems to me one should not be held to have attempted to cause its violation. If that be not the test, I can see no escape from the conclusion that under this section every political agitation which can be shown to be apt to create a seditious temper is illegal."
"This is an organizers' meeting. We have had quite a few members here today which are--we have hundreds, hundreds of members throughout the State of Ohio. I can quote from a newspaper clipping from the Columbus, Ohio Dispatch, five weeks ago Sunday morning. The Klan has more members in the State of Ohio than does any other organization. We're not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it's possible that there might have to be some revengeance taken. We are marching on Congress July the Fourth, four hundred thousand strong. From there we are dividing into two groups, one group to march on St. Augustine, Florida, the other group to march into Mississippi. Thank you."
"The constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."
"Though I doubt if the 'clear and present danger' test is congenial to the First Amendment in time of a declared war, I am certain it is not reconcilable with the First Amendment in days of peace."
Questions to Ponder:
Selected Bibliography: Gunther, Gerald. Learned Hand: The Man and the Judge. (New York: Knopf, 1994.) Nelson, William E. The Fourteenth Amendment: From Political Principle to Judicial Doctrine. (Massachusetts, London: Harvard University Press, 1988.) Nowak, John, and Ronald D. Rotunda. Constitutional Law, 6th ed., Hornbook Series. (St. Paul, MN: West Group, 2000.) Parker, Richard A., ed. Free Speech on Trial: Communications Perspectives on Landmark Supreme Court Decisions. (Tuscaloosa, AL: University of Alabama Press, 2003.) Stone, Geoffrey R. Perilous Times: Free Speech in Wartime--From the Sedition Act of 1798 to the War on Terrorism (New York, NY: W. W. Norton, 2004) Tribe, Laurence M. American Constitutional Law, 3rd ed., University Textbook Series. (St. Paul, MN: West Publishing Company, 1999.) Gateway Links: |
| Lemon v. Kurtzman
(1971)
Decided by a vote of 8 to 0 Conflict: As a young man growing up in Atlanta, Alton T. Lemon attended Morehouse College, a historic black college, along with Martin Luther King, Jr. After a tour of duty in the U.S. Army, Lemon moved to Philadelphia. He became an "ethical humanist" and attended meetings of the Philadelphia Chapter of the ACLU. In 1968, Pennsylvania's Catholic schools were facing a financial crisis, so the state legislature passed Act 109, which reimbursed private schools for the salaries of teachers who provided instruction in four secular subjects: mathematics, modern foreign languages, elementary science, and physical education. Beginning in September 1969, and each year after, Pennsylvania annually paid more than $5 million to over 1,100 non-public elementary and secondary schools, 96 percent of which were religious institutions; the majority of these schools were Roman Catholic parochial schools. At a monthly Philadelphia ACLU meeting, the executive director suggested suing the state over Act 109; Alton Lemon (whose 12-year-old son attended public school) agreed to challenge the law. A special three-judge federal panel heard the case; it ruled 2-1 against Lemon, and the case immediately went to the Supreme Court for review. A similar case from Rhode Island was combined with the Pennsylvania case and argued before the Supreme Court as Lemon v. Kurtzman. Opinion: In an 8 to 0 ruling (Justice Thurgood Marshall did not participate), the Supreme Court concluded that both Pennsylvania and Rhode Island had violated the First Amendment Religious Establishment Clause. Writing the majority opinion, Chief Justice Warren Burger went further by formulating the three-part "Lemon test" for laws involving religious establishment: 1) a statute must have secular legislative purpose, 2) it may neither advance nor inhibit religion, and 3) it may not entangle government and religion excessively. Context: Following Everson v. Board of Education (1947), a flurry of school cases came to the Supreme Court. In McCollum v. Board of Education (1948), the Court determined holding classes coordinated with a religious council on tax-supported school grounds constituted a clear violation of the First Amendment. In 1952, the Supreme Court considered whether releasing students from classes so they might participate in religious instruction elsewhere was constitutional. The justices ruled 6 to 3 in Zorach v. Clauson (1952) that allowing students released time for religious instruction off school grounds did not violate the Religious Establishment Clause. Over the years the Court quite consistently struck down state aid to denominational schools and religion in public schools. Recognizing the need to articulate a standard that government entities could use to draft constitutionally valid laws, along with a reliable measure the Court could apply to contested laws, the Supreme Court combined the cases from Rhode Island and Pennsylvania over financial support to non-public schools into Lemon v. Kurtzman. Impact/Consequences: Alton Lemon and his family (including his wife who was a school nurse at both public and parochial schools) were untouched by the case. A federal administrator, he retired to Mount Airy, Pennsylvania but remained interested in the issue of church-state separation. The current Court is not entirely comfortable with the "Lemon test," and while the majority no longer supports it, they have not abandoned it or formerly overturned it. Justice Sandra Day O'Connor modified the test, emphasizing the idea that government should not endorse religion in her Lynch v. Donnelly (1984) opinion, and subsequently used the "endorsement test." Justice Anthony Kennedy proposed a "coercion test" in his County of Allegheny v. ACLU (1989) dissent, meaning that the government could not coerce religious beliefs. Although the Establishment Clause law is in flux at the present, the Lemon Test remains the central point of discussion in the Court's interpretation of those cases involving the government and religion. Quotes: "Our prior holdings do not call for total separation between church and state; total separation is not possible in an absolute sense. Some relationship between government and religious organizations is inevitable. Fire inspections, building and zoning regulations, and state requirements under compulsory school-attendance laws are examples of necessary and permissible contacts... Judicial caveats against entanglement must recognize that the line of separation, far from being a "wall," is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship.... In order to determine whether the government entanglement with religion is excessive, we must examine the character and purposes of the institutions that are benefited, the nature of the aid that the State provides, and the resulting relationship between the government and the religious authority."
"Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years. Three such tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, finally, the statute must not foster 'an excessive government entanglement with religion.'"
"Ordinarily political debate and division, however vigorous or even partisan, are normal and healthy manifestations of our democratic system of government, but political division along religious lines was one of the principal evils against which the First Amendment was intended to protect. The potential divisiveness of such conflict is a threat to the normal political process. To have States or communities divide on the issues presented by state aid to parochial schools would tend to confuse and obscure other issues of great urgency. We have an expanding array of vexing issues, local and national, domestic and international, to debate and divide on. It conflicts with our whole history and tradition to permit questions of the Religion Clauses to assume such importance in our legislatures and in our elections that they could divert attention from the myriad issues and problems that confront every level of government. The highways of church and state relationships are not likely to be one-way streets, and the Constitution's authors sought to protect religious worship from the pervasive power of government. The history of many countries attests to the hazards of religion's intruding into the political arena or of political power intruding into the legitimate and free exercise of religious belief."
"Lemon involves a state statute that prescribes that courses in mathematics, modern foreign languages, physical science, and physical education 'shall not include any subject matter expressing religious teaching, or the morals or forms of worship of any sect.' The subtleties involved in applying this standard are obvious. It places the State astride a sectarian school and gives it power to dictate what is or is not secular, what is or is not religious. I can think of no more disrupting influence apt to promote rancor and ill-will between church and state than this kind of surveillance and control. They are the very opposite of the 'moderation and harmony' between church and state which Madison thought was the aim and purpose of the Establishment Clause."
"As to the Court's invocation of the Lemon test: Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six feet under: Our decision in Lee v. Weisman conspicuously avoided using the supposed 'test' but also declined the invitation to repudiate it. Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature's heart (the author of today's opinion repeatedly), and a sixth has joined an opinion doing so. The secret of the Lemon test's survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will. Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him."
"I was surprised that my name was at the top of the docket... I am proud of it, but this has to be a continuing fight. This is an area in which we need people to pay careful attention because the fight is not over and it will probably never be over."
Questions to Ponder:
Selected Bibliography: Alley, Robert S., ed. The Constitution & Religion: Leading Supreme Court Cases on Church and State. (Amherst, NY: Prometheus Books, 1999.) Finkelman, Paul. Religion and American Law: An Encyclopedia. (New York: Garland Square Publishing, 2002.) Haynes, Charles C. and Oliver Thomas, eds. Finding Common Ground: A Guide to Religious Liberty in Public Schools. (Nashville, TN: First Amendment Center, 2002.) Levy, Leonard W. The Establishment Clause: Religion and the First Amendment. (Chapel Hill, NC: University of North Carolina Press 1994.) Mauro, Tony. Illustrated Great Decisions of the Supreme Court. (Washington, DC: CQ Press, 2000.) Miller, Robert T. and Ronald B. Flowers. Toward Benevolent Neutrality: Church, State, and the Supreme Court. Fifth ed. (Waco, TX: Baylor University Press, 1996.) van Geel, Tyll. The Courts and American Education Law. (Buffalo, NY: Prometheus Books, 1987.) Gateway Links: |
| NY Times v. U. S.
(1971)
Decided by a vote of 6 to 3 Conflict: During the administration of President Lyndon B. Johnson, Secretary of Defense Robert McNamara ordered Defense Department analysts to examine the history and conduct of the war in Vietnam. The result was a 7,000-page report, "The History of U.S. Decision-Making on Viet Nam Policy." Because material in the report included confidential discussions involving foreign nations, a host of secret and deceptive dealings, and revealed that the CIA had bugged Soviet Premier Leonid Brezhnev's automobile, the report was classified top-secret. Much of the report detailed events as far back as 1945 and contained, in the minds of many, little if any sensitive information. Critically, the report revealed that the government suspected it would not win the war and would sustain far higher military casualties than it had admitted to the public. Disturbed by the report's contents, Defense Department analyst Daniel Ellsberg leaked copies of the document to The New York Times. The newspaper reviewed the stolen information for three months before deciding to publish extracts from the report. The first installment was published on Sunday, June 13, 1971 under a front-page New York Times headline, "Vietnam Archive: Pentagon Study Traces 3 Decades of Growing U.S. Involvement." Attorney General John Mitchell called the Times the following day requesting that it desist from publication; when the Times refused, Mitchell obtained a court injunction against publication, the first time the federal government had successfully restrained a newspaper from publication. Ellsberg then released the Pentagon Papers (the classified report) to the Washington Post; if the government wished to suppress the information it would have to get injunctions against every newspaper in the country. Joined by the Post, the Times went to court to have the injunction lifted. The case was argued on the same day, June 22, 1971, in both the Court of Appeals for the District of Columbia and the Second Circuit. Decisions for both courts were announced the following afternoon, on June 23, the Court of Appeals supporting publication, the Second Circuit opposing publication. Three days later the United States Supreme Court heard New York Times v. United States (commonly referred to as the Pentagon Papers case). Opinion: Four days after hearing arguments in the case, a majority on the Supreme Court ruled that the administration had failed to meet the heavy burden necessary for "prior restraint" of publication and allowed the newspapers to publish the Pentagon Papers. Justices Hugo Black, William O. Douglas, William J. Brennan, Jr., Potter Stewart, Byron White and Thurgood Marshall wrote concurring opinions.. Three justices dissented: Chief Justice Warren Burger, and Justices Harry Blackmun and John Harlan all wrote dissenting opinions. The issue of "prior restraint" was central to the decision. It means the presumption that any attempt by the government to prevent speech or publication of ideas in advance of their expression is fundamentally unconstitutional. The idea of "prior restraint" is akin to censorship. The Court established this precedent in Near v. Minnesota (1931), which struck down a "public nuisance statute" aimed at preventing the publication of a hard-hitting weekly newspaper critical of corruption and racketeering in Minneapolis. Context: When Richard Nixon was elected president for the first time, in 1968, he promised "peace with honor," a gradual withdrawal from Vietnam during which American troops would be replaced by Vietnamese troops. North Vietnamese build-up in the adjacent neutral nations of Cambodia and Laos prompted Nixon, however, in early 1969 to authorize secret bombing missions over Cambodia. Nixon concealed this from Congress through falsified bombing reports. Finally, on the evening of April 30, 1969, President Nixon made a television address to the nation announcing the U.S. invasion of eastern Cambodia. He justified the invasion by the president's power as commander-in-chief, rather than by a Congressional declaration of war. This new expansion of the war triggered massive demonstrations by anti-war activists and a million and a half college students on campuses everywhere in the United States. On May 4, 1970 National Guardsmen killed four students at Kent State University in Ohio. Congress, already uneasy about the erosion of the war powers of the legislative branch, voted on June 24, 1970 to repeal the Gulf of Tonkin Resolution (which had given the presidents a carte blanche for conduct of the war in Southeast Asia), and members of Congress began debating proposals to cut funding for the war. Television news had turned Vietnam into a "living-room war." Photographs of the massacre of Vietnamese civilians at My Lai broadcast during the trial of Lt. William F. Calley, Jr. made many Americans question the morality of the war. Those who supported the war were, nonetheless, troubled by the nightly images of wounded and dead American soldiers. Public confidence in government was eroding; presidential aide H.R. Haldeman correctly anticipated the impact of publication of the Pentagon Papers. He advised Nixon to take action to stop their publication: "...out of the gobbledygook, comes a very clear thing: ...you can't trust the government; you can't believe what they say; and you can't rely on their judgment; and the--the implicit infallibility of presidents, which has been an accepted thing in America, is badly hurt by this, because it shows that people do things the President wants to do even though it's wrong, and the President can be wrong." In asking the Court for an injunction to stop publication of the report, the Nixon Administration argued that its publication would endanger the lives of American combat troops, hurt the release of prisoners of war, and seriously undermine the peace process. This contention was challenged by legal scholars and by foreign policy experts even within the Nixon Administration. The Administration's Solicitor General, for example, expressed doubt about the basis for the injunction request. Impact/Consequences: The New York Times v. United States decision ended the 15-day moratorium on publication of the Pentagon Papers and maintained the high burden-of-proof standard for "prior restraint." The case is counted as a significant victory in the history of freedom of the press. Yet, the justices wrote nine opinions in this case, often with substantive differences on major issues. Because no five justices could agree on the reasoning behind the majority opinion, the decision was issued per curiam, or "by the Court" rather than by a lead justice. On June 28, Daniel Ellsberg surrendered to authorities in Boston, Massachusetts and was placed on trial for theft, conspiracy, and espionage. The Nixon administration was determined to discredit Ellsberg thoroughly before the trial; operatives G. Gordon Liddy and E. Howard Hunt broke into Ellsberg's psychiatrist's office in September 1971 hoping to find damning information on him. And in May 1972 an attempt to drug Ellsberg at a public-speaking engagement was contemplated. Because of the revelation of this abuse of power, the judge ruled a mistrial and dropped the case against Daniel Ellsberg. The break-in at Ellsberg's psychiatrist's office would become part of the Watergate scandal, which resulted in the House recommending articles of impeachment against President Richard Nixon forcing his resignation. Whether the First Amendment would trump national security claims in a declared war, or if there were a narrowly drawn congressional authorization, remains unclear. The only time a federal court has blocked publication on the grounds of a danger to national security occurred in United States v. Progressive, Inc. (1979). In that case, a U. S. District Judge allowed for the suppression of an article forthcoming in The Progressive entitled "The H-Bomb Secret: How We Got It, Why We're Telling It." The case did not get to the Supreme Court on appeal because the government pulled back when similar material was published. Quotes: "Hell, I wouldn't prosecute the Times. My view is to prosecute the Goddamn pricks that gave it to 'em."
"In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government's power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. In my view, far from deserving condemnation for their courageous reporting, the New York Times, the Washington Post, and other newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly. In revealing the workings of government that led to the Vietnam War, the newspapers nobly did precisely that which the Founders hoped and trusted they would do.... The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic."
"The dominant purpose of the First Amendment was to prohibit the widespread practice of governmental suppression of embarrassing information. It is common knowledge that the First Amendment was adopted against the widespread use of the common law of seditious libel to punish the dissemination of material that is embarrassing to the powers-that-be. The present cases will, I think, go down in history as the most dramatic illustration of that principle. A debate of large proportions goes on in the Nation over our posture in Vietnam. That debate antedated the disclosure of the contents of the present documents. The latter are highly relevant to the debate in progress. Secrecy in government is fundamentally anti-democratic, perpetuating bureaucratic errors. Open debate and discussion of public issues are vital to our national health."
"The entire thrust of the Government's claim throughout these cases has been that publication of the material sought to be enjoined 'could,' or 'might,' or 'may' prejudice the national interest in various ways. But the First Amendment tolerates absolutely no prior judicial restraints of the press predicated upon surmise or conjecture that untoward consequences may result."
"But in the cases before us we are asked neither to construe specific regulations nor to apply specific laws. We are asked, instead, to perform a function that the Constitution gave to the Executive, not the Judiciary. We are asked, quite simply, to prevent the publication by two newspapers of material that the Executive Branch insists should not, in the national interest, be published. I am convinced that the Executive is correct with respect to some of the documents involved. But I cannot say that disclosure of any of them will surely result in direct, immediate, and irreparable damage to our Nation or its people. That being so, there can under the First Amendment be but one judicial resolution of the issues before us. I join the judgments of the Court."
"But why should the United States Government, from whom this information was illegally acquired by someone, along with all the counsel, trial judges, and appellate judges be placed under needless pressure? After these months of deferral, the alleged 'right to know' has somehow and suddenly become a right that must be vindicated instantly. Would it have been unreasonable, since the newspaper could anticipate the Government's objections to release of secret material, to give the Government an opportunity to review the entire collection and determine whether agreement could be reached on publication? Stolen or not, if security was not in fact jeopardized, much of the material could no doubt have been declassified, since it spans a period ending in 1968. With such an approach--one that great newspapers have in the past practiced and stated editorially to be the duty of an honorable press--the newspapers and Government might well have narrowed the area of disagreement as to what was and was not publishable, leaving the remainder to be resolved in orderly litigation, if necessary."
"The First Amendment, after all, is only one part of an entire Constitution. Article II of the great document vests in the Executive Branch primary power over the conduct of foreign affairs and places in that branch the responsibility for the Nation's safety. Each provision of the Constitution is important, and I cannot subscribe to a doctrine of unlimited absolutism for the First Amendment at the cost of downgrading other provisions.... I strongly urge, and sincerely hope, that these two newspapers will be fully aware of their ultimate responsibilities to the United States of America....If, however, damage has been done, and if, with the Court's action today, these newspapers proceed to publish the critical documents and there results therefrom 'the death of soldiers, the destruction of alliances, the greatly increased difficulty of negotiation with our enemies, the inability of our diplomats to negotiate,' to which list I might add the factors of prolongation of the war and of further delay in the freeing of United States prisoners, then the Nation's people will know where the responsibility for these sad consequences rests."
Questions to Ponder:
Selected Bibliography: Abrams, Floyd. Speaking Freely: Trials of the First Amendment. (New York: Viking Books, 2005.) Bickel, Alexander. The Morality of Consent. (New Haven, CT: Yale University Press, 1976.) Ellsberg, Daniel. Secrets: A Memoir of Vietnam and the Pentagon Papers. (New York: Viking Books, 2002.) Liddy, G. Gordon. Will: The Autobiography of G. Gordon Liddy. (New York: St. Martin's Press, 1980.) Mauro, Tony. Illustrated Great Decisions of the Supreme Court. (Washington, DC: CQ Press, 2000.) Nowak, John, and Ronald D. Rotunda. Constitutional Law, 6th ed., Hornbook Series. (St. Paul, MN: West Group, 2000.) Powe, Jr., Lucas. The Fourth Estate and the Constitution: Freedom of the Press in America. (Berkeley, CA: University of California Press, 1991) Prados, John and Margaret Pratt Porter. Inside the Pentagon Papers. (Lawrence, KS: University of Kansas Press, 2004.) Rudenstine, Davis. The Day the Presses Stopped: A History of the Pentagon Papers Case. (Berkeley, CA: University of California Press, 1996.) Stone, Geoffrey R. Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to The War on Terrorism. (New York: W.W. Norton & Company, Inc., 2004.) Tribe, Laurence M. American Constitutional Law, 3rd ed., University Textbook Series. (St. Paul, MN: West Publishing Company, 1999.) Ungar, Sanford J. The Papers & the Papers; an Account of the Legal and Political Battle Over the Pentagon Papers. (New York: Dutton, 1972.) Gateway Links: |
| Miller v. California
(1973)
Decided by a vote of 5 to 4 Battle: Prior to June 1969 one of California's largest distributors of mail-order "adult" materials, Marvin Miller, sent out a mass-mailing of advertisements for illustrated, sexually explicit books. The mailing consisted of brochures featuring some written descriptions and many graphic, sexually explicit illustrations. One of these mailings was delivered to a Newport Beach restaurant. The unsuspecting manager opened the package in the presence of his mother. Outraged at what they saw, the mother and son instigated legal action against Miller for violating the state's obscenity law. Miller was convicted in a jury trial under the California Penal Code: "Every person who knowingly: sends or causes to be sent, or brings or causes to be brought, into this state for sale or distribution, or in this state prepares, publishes, prints, exhibits, distributes, or offers to distribute, or has in his possession with intent to distribute or to exhibit or offer to distribute, any obscene matter is guilty of a misdemeanor." When the California Superior Court sustained his conviction, Miller appealed to the Supreme Court. Opinion: Marvin Miller's conviction was sustained by a 5 to 4 ruling, which held that the First Amendment does not necessarily protect obscene speech, or that which is defined as obscenity. Although the decision was narrow, the majority of the Court coalesced behind a new three-prong test for obscenity. Material can be judged obscene, according to the Court, only if (1) "the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest;" and (2) the" work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law;" and (3) the "work, taken as a whole, lacks serious literary, artistic, political, or scientific value." Chief Justice Warren Burger, in writing for the Court, also noted that under this standard, only the sale or exposure of those materials depicting "hard core" sexual conduct would violate the law. The Court asserted clearly the idea first alluded to in Roth v. United States (1957) that the definition of obscenity (and the literary, artistic, political, or scientific value of allegedly obscene material) could be determined by contemporary community standards rather than national standards. Context: One of the earliest free speech issues to reach the Supreme Court was whether obscene speech is protected under the First Amendment. In Rosen v. United States (1896), the Court sustained the conviction of publisher Lew Rosen for distributing "lewd, obscene, and lascivious" material through the U.S. mails. Justice John Marshall Harlan put the matter simply and clearly: the "test of obscenity is whether the tendency of the matter is to deprave and corrupt the morals of those whose minds are open to such influence, and into whose hands a publication of this sort may fall." This definition focused on the likelihood that the material would adversely impact ("corrupt" or "deprave") whomsoever received it. The Court did not consider this issue to be a matter of free speech protected by the First Amendment because obscenity was not about speech. By this the Court meant, that speech has to convey ideas, which obscenity does not--in the Court's opinion. In 1957, the Supreme Court heard the appeal of Samuel Roth, a New York bookseller and publisher convicted of mailing books and circulars that were "obscene, lewd, lascivious, or filthy." In Roth v. United States, the Court reasserted the concept that obscenity is not "speech." It is equivalent to conduct or action, and thus clearly subject to regulation as crime as long as it is specifically defined. It other words, while the Court placed obscenity beyond First Amendment protections, it. acknowledged that the regulation of obscenity did raise constitutional questions. A state law, for example, might deem speech as obscene when it was not in fact obscene. The law would have to precisely define what is meant by obscenity to make sure that protected speech was not restrained. Obscene speech could be regulated but it had to be clearly defined as obscenity. Justice William Brennan, in writing for the majority in Roth, tried to place the burden of defining what is obscene on local rather than national communities. For him, this could be done by asking whether the average person, by "applying contemporary community standards," would say that the "dominant theme of the material taken as a whole appealed to prurient interest." For the next 15 years the Court struggled, despite its stand in Roth, to come up with a clear and precise definition of obscenity. In one case, a frustrated Justice Potter Stewart proclaimed his difficulty in defining hard-core pornography: "I know it when I see it." This comment essentially meant that "obscenity is in the eye of the beholder," as stated by the humorist Tom Lehrer. In 1966, Fanny Hill, a book written in 1750, and cited as obscene in Rosen in 1896, arrived once again at the Supreme Court (A Book Named "John Cleland's Memoirs of a Woman of Pleasure" et al. v. Attorney General of Massachusetts -1966). The Court upheld the legality of the book, by going beyond the Roth test. In writing for a divided Court, Justice William Brennan highlighted the importance of considering the issue of "redeeming social value" in the definition of obscenity: "A book cannot be proscribed unless it is found to be utterly without redeeming social value. This is so even though the book is found to possess the requisite prurient appeal and to be patently offensive." So now the issue of social value came into play. Because of the vagueness of the tests and the lack of consensus about what is obscene by definition, the Supreme Court was inundated with obscenity cases (over 60 in the 1971-1972 term) in the years after Roth. Furthermore, the Court became embroiled in a public, political backlash to pornography. The perception that the Supreme Court had legalized obscenity contributed to the failure of Justice Abe Fortas to be elevated to the Chief Justice as well as to the election of Richard Nixon, who promised in his 1968 presidential campaign to appoint "strict constructionists" to the Supreme Court. Nixon's election and appointment of Chief Justice Warren Burger set the stage for the Court to revisit obscenity and the First Amendment. Miller represented the attempt to put the burden of defining obscenity back on local juries. Community not national standards would determine redeeming social value and artistic and literary merit, and thus the Supreme Court would be "off the hook," so to speak. Impact/Consequences: In creating the Miller test, the Supreme Court reworked the Roth test and abandoned the "redeeming social value" test articulated in the Memoirs case. The decision gave communities and states greater latitude in regulating obscenity, whether in print form (such as adult bookstores) or non-verbal (such as topless bars). Miller has thwarted most challenges to zoning and public nudity ordinances. The "local standards" element means that there is no consistent national standard; the public, local lawmakers, and lower courts remain rather confused about the definition of "obscenity." Roughly a hundred subsequent Supreme Court opinions have cited Miller. Nor has the Court since Miller always agreed with community definitions of obscenity. In Jenkins v. Gerogia (1976), the Court overturned Georgia's claim that the film Carnal Knowledge appealed only to prurient interests. It found reasonable the argument that the film had significant artistic merit based on national standards. In Pope v. Illinois (1987), moreover, the Court held that community standards would seldom trump national standards in determining the redeeming value and artistic merit of a particular book or artistic work. The emergence of obscenity on the internet has opened up new questions, especially since the Court ruled in Ashcroft v. ACLU (2002) that virtual child pornography on the internet was constitutional. Miller appears to be of little value, moreover, for dealing with those feminists who argue that the issue of pornography is not its obscenity but its incitement of violence against women, and thus it should be banned altogether. Quotes: "311. Definitions As used in this chapter: (a) 'Obscene' means that to the average person, applying contemporary standards, the predominant appeal of the matter, taken as a whole, is to prurient interest, i. e., a shameful or morbid interest in nudity, sex, or excretion, which goes substantially beyond customary limits of candor in description or representation of such matters and is matter which is utterly without redeeming social importance."
"But, in our view, to equate the free and robust exchange of ideas and political debate with commercial exploitation of obscene material demeans the grand conception of the First Amendment and its high purposes in the historic struggle for freedom. It is a 'misuse of the great guarantees of free speech and free press'. ... There is no evidence, empirical or historical, that the stern 19th century American censorship of public distribution and display of material relating to sex, in any way limited or affected expression of serious literary, artistic, political, or scientific ideas. On the contrary, it is beyond any question that the era following Thomas Jefferson to Theodore Roosevelt was an 'extraordinarily vigorous period,' not just in economics and politics, but in belles lettres and in 'the outlying fields of social and political philosophies.' We do not see the harsh hand of censorship of ideas--good or bad, sound or unsound--and 'repression' of political liberty lurking in every state regulation of commercial exploitation of human interest in sex."
"The idea that the First Amendment permits punishment for ideas that are 'offensive' to the particular judge or jury sitting in judgment is astounding. No greater leveler of speech or literature has ever been designed. To give the power to the censor, as we do today, is to make a sharp and radical break with the traditions of a free society. The First Amendment was not fashioned as a vehicle for dispensing tranquilizers to the people. Its prime function was to keep debate open to 'offensive' as well as to 'staid' people."
Questions to Ponder:
Selected Bibliography: Dworkin, Andrea and Catharine MacKinnon, eds. In Harm's Way: The Pornography Civil Rights Hearings. (Cambridge: Harvard University Press, 1997.) Irons, Peter. May It Please the Court: The First Amendment. (New York: The New Press, 1997.) Nowak, John, and Ronald D. Rotunda. Constitutional Law, 6th ed., Hornbook Series. (St. Paul, MN: West Group, 2000.) Parker, Richard A., ed. Free Speech on Trial: Communications Perspectives on Landmark Supreme Court Decisions. (Tuscaloosa, AL: University of Alabama Press, 2003.) Tribe, Laurence M. American Constitutional Law, 3rd ed., University Textbook Series. (St. Paul, MN: West Publishing Company, 1999.) Gateway Links: |
| Roberts v. U. S. Jaycees
(1984)
Decided by a vote of 7 to 0 Conflict: The United States Junior Chamber of Commerce (Jaycees) is a national, private non-profit organization that was established in 1920 to help young men develop personal and leadership skills through service to others. The organization's bylaws limited membership to males between the ages of 18 and 35; men older than 35 and women were permitted to hold associate memberships but could not vote or hold office in the organization. The Minneapolis (1974) and St. Paul (1975) chapters of the Jaycees in Minnesota decided to ignore the bylaws and admit women as full members. After sanctions against the "renegade" chapters failed, the president of the national organization advised the two chapters in December 1978 that he planned to begin action to revoke the chapters' licenses. Both chapters filed a claim with the Minnesota Department of Human Rights, headed by Kathryn Roberts, under a state public accommodations law, which prohibited discrimination on the basis of sex. The United States Jaycees asked a federal court for an injunction claiming that their First Amendment rights of free speech and association would be violated if Roberts enforced the law. The Eighth Circuit Court of Appeals ruled in favor of the Jaycees. Minnesota appealed to the Supreme Court. Because Chief Justice Warren Burger had been president of the St. Paul Chapter in 1935 and Justice Harry Blackmun a member of the Minneapolis Chapter, they did not participate in the case. Opinion: In a unanimous decision, the seven participating justices of the Supreme Court upheld the applicability of Minnesota's anti-discrimination law to the United States Jaycees and required the organization to admit women, its bylaws notwithstanding. The Supreme Court had to consider two of the pre-eminent principles in constitutional law, the First Amendment's right of association and the Fourteenth Amendment's guarantee of equal protection; the Supreme Court decided that the state's interest in preventing discrimination against women was more compelling than the right of the Jaycees to restrict their membership. Requiring the Jaycees to admit women to their membership would not place a burden on the rights of male members by suppressing their speech or point-of-view. The economic focus of the organization was the deciding factor for the Court in this case. The majority of the justices felt that the economic benefits of membership could not be denied to women without being discriminatory. In her concurring opinion, Justice Sandra Day O'Connor came to the same conclusion through an entirely different thought process. She did not consider the Jaycees to be an expressive association, but instead a commercial organization subject to state regulation. By expressive association, Justice O'Connor meant that the mere joining of a group might demonstrate, because of the group's mission or purpose, an expression of opinion similar to speech in regard to basic rights. For her joining the Jaycees did not involve this kind of expressive conduct. Context: The First Amendment does not specifically grant a right to association, but Enlightenment philosophers such as Jeremy Bentham viewed it as a natural right. The Supreme Court has come to recognize the right of association, but only quite recently. In the case of NAACP v. Alabama (1958) the Court recognized "expressive association" (organizing to express political thoughts) to be a protected right through the First Amendment's protection of free speech and peaceful assembly. This means that the Constitution's protection of freedom of assembly has come to be defined not only as the right of citizens to assemble in public places to make their opinions known but also the right to associate with others as a "part-and-parcel of the freedom of assembly." In the last century, moreover, the Court has recognized the right to so-called "intimate association" as a protected, privacy right binding on states through the Fourth Amendment; this Court ruling had its origins in marital rights cases, notably Griswold v. Connecticut (1965) and Loving v. Virginia (1967). Roberts v. United States Jaycees also represents the shift in American culture resulting from the women's rights movement in the 1960s and 1970s. In September 1981, Justice Sandra Day O'Connor became the first woman justice in the history of the United States Supreme Court. mpact/Consequences: The Jaycees, presently 6,000 chapters strong world-wide, now say they cannot imagine the organization without women and proudly list on their webpage among other exemplary Jaycees former Miss America Kaye Lani Rae Rafko-Wilson. Since Roberts, the Supreme Court has scrutinized private associations to make certain their main purpose is not discrimination, rather than association. In Board of Directors of Rotary International v. Rotary Club of Duarte (1987) and New York State Club Association v. City of New York (1988), the Supreme Court ruled that the equal protection interests of women outweighed private clubs' association rights and required that they admit women. The Supreme Court has also determined that states cannot hold open primaries in which voters who are not members of a political party may participate in candidate selection by a political party in the case of California Democratic Party v. Jones (2000). In 2000, the Supreme Court considered whether the Boys Scouts of America had the right to revoke the adult membership of James Dale, a former Eagle Scout and troop leader who was a homosexual and gay rights activist in Boy Scouts of America v. Dale. The Supreme Court narrowly ruled in favor of the Boy Scouts, 5-4. The test for when association rights end and discrimination begins remains unresolved and will continue to be refined by the Supreme Court. Quotes: "promote and foster the growth and development of young men's civic organizations in the United States, designed to inculcate in the individual membership of such organization a spirit of genuine Americanism and civic interest, and as a supplementary education institution to provide them with opportunity for personal development and achievement and an avenue for intelligent participation by young men in the affairs of their community, state and nation, and to develop true friendship and understanding among young men of all nations."
"It is an unfair discriminatory practice: To deny any person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation because of race, color, creed, religion, disability, national origin or sex."
"Our decisions have referred to constitutionally protected 'freedom of association' in two distinct senses. In one line of decisions, the Court has concluded that choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme. In this respect, freedom of association receives protection as a fundamental element of personal liberty. In another set of decisions, the Court has recognized a right to associate for the purpose of engaging in those activities protected by the First Amendment--speech, assembly, petition for the redress of grievances, and the exercise of religion. The Constitution guarantees freedom of association of this kind as an indispensable means of preserving other individual liberties."
"In short, the local chapters of the Jaycees are neither small nor selective. Moreover, much of the activity central to the formation and maintenance of the association involves the participation of strangers to that relationship. Accordingly, we conclude that the Jaycees chapters lack the distinctive characteristics that might afford constitutional protection to the decision of its members to exclude women.... Indeed, the Jaycees has failed to demonstrate that the Act imposes any serious burdens on the male members' freedom of expressive association.... The Act requires no change in the Jaycees' creed of promoting the interests of young men, and it imposes no restrictions on the organization's ability to exclude individuals with ideologies or philosophies different from those of its existing members."
"On the other hand, there is only minimal constitutional protection of the freedom of commercial association. There are, of course, some constitutional protections of commercial speech--speech intended and used to promote a commercial transaction with the speaker. But the State is free to impose any rational regulation on the commercial transaction itself. The Constitution does not guarantee a right to choose employees, customers, suppliers, or those with whom one engages in simple commercial transactions, without restraint from the State. A shopkeeper has no constitutional right to deal only with persons of one sex."
Questions to Ponder:
Selected Bibliography: Abernathy, M. Glenn. The Right of Assembly and Association, 2nd ed. (Columbia, SC: University of South Carolina Press, 1981.) Kurland, Philip B., ed. Free Speech and Association: The Supreme Court and the First Amendment. (Chicago: University of Chicago Press, 1975). Mauro, Tony. Illustrated Great Decisions of the Supreme Court. (Washington, DC: CQ Press, 2000.) McWhirter, Darien A. Exploring the Constitution Series: Freedom of Speech, Press, and Assembly. (Phoenix, AZ: The Oryx Press, 1994.) Nowak, John, and Ronald D. Rotunda. Constitutional Law, 6th ed., Hornbook Series. (St. Paul, MN: West Group, 2000.) Tribe, Laurence M. American Constitutional Law, 3rd ed., University Textbook Series. (St. Paul, MN: West Publishing Company, 1999.) Gateway Links: |
| Oregon Dept. of H.R. v. Smith
(1990)
Decided by a vote of 6 to 4 Conflict: Alfred Smith, who had overcome alcoholism in 1957 through Alcoholics Anonymous, and a member of the Klamath Tribe in Oregon, worked for the Douglas County Alcohol and Drug Abuse Treatment and Prevention center, a private group in Oregon. One of his co-workers was fellow counselor and recovering alcoholic Galen Black. As condition of their employment, both men had signed a policy saying that they would remain alcohol and drug free. Although not a Native American, Black consumed a small amount of peyote in a sacramental ceremony of the Native American Church., which he was planning to join. Smith, a man in his sixties and member of the Native American Church, knew his employer forbade peyote use but he decided to defy the policy because of his religious convictions. Both men were fired from their jobs. Oregon law prohibited the possession of a "controlled substance," and the drug peyote, a hallucinogen derived from the plant lophonpho-rawilliamsii lemaire, was among those outlawed by the state. The Employment Division of the Oregon Department of Human Resources denied employment benefits to Smith and Black because they had been fired for "misconduct," specifically for using a small amount of peyote in conjunction with ceremonies of the Native American Church. Smith and Black challenged the ruling. Both the Oregon Court of Appeals and the Oregon Supreme Court ruled that the men's First Amendment free exercise rights had been unduly burdened by the loss of the benefits and restored them. Oregon appealed to the Supreme Court, but in 1988 the Supreme Court remanded the case to the Oregon Supreme Court to determine whether the use of illegal drugs in a religious ceremony was illegal under the state's drug laws. The Oregon Supreme Court concluded that the drug laws of the state violated the Free Exercise Clause of the First Amendment, so the state appealed to the Supreme Court again. Opinion: The Supreme Court ruled 6 to 3 to overturn the lower court rulings; the interest of the state in preventing drug abuse was more compelling than the asserted right to ingest peyote by a religious minority. Justice Antonin Scalia wrote the opinion for the majority saying that Smith and Black "urge us to hold, quite simply, that when otherwise prohibitable conduct is accompanied by religious convictions, not only the convictions but the conduct itself must be free from governmental regulation. We have never held that, and decline to do so now. There being no contention that Oregon's drug law represents an attempt to regulate religious beliefs, the communication of religious beliefs, or the raising of one's children in those beliefs, the rule to which we have adhered ever since Reynolds plainly controls." He went on to explain that civil law would be undermined if in every religious exercise case, for every one of the many religions in the United States, exceptions had to be made. Furthermore, the Court rejected applying the "strict scrutiny" test (used since Sherbert v. Verner, 1963) to cases where individuals claimed exemption from laws on the basis of religious belief. The decision in Smith represented a major shift by the Supreme Court. Justice Harry Blackmun wrote a vigorous dissent, joined by Justices William J. Brennan, Jr. and Thurgood Marshall, arguing against the abandonment of the "strict scrutiny" test. Context: During the years of the Warren and Burger Courts, laws that burdened religious exercise were subjected to "strict scrutiny" tests to see if there was a compelling state interest that outweighed the right to sincerely motivated religious practices. The Court upheld the free exercise rights of a wide range of religious minorities in Sherbert v. Verner (Seventh Day Adventist, 1963), Yoder v. Wisconsin (Amish, 1972), and Frank v. Alaska (Athabascan Tribe, 1979). In the 1980s, the Supreme Court began to narrow what constituted a "significant burden" while it expanded what constituted "compelling state interest." It upheld government interests against free exercise in Goldman v. Weinberger (1986) and Lyng v. Northwest Indian Cemetery Protection Association (1988). Impact/Consequences: Congress reacted to the decision in Smith by passing the Religious Freedom Restoration Act of 1993 (RFRA), which required local, state, and federal laws that interfered with religious exercise to meet the pre-Smith standard of support by a "compelling state interest." In City of Boerne v. Flores (1997) the Supreme Court struck down, however, the RFRA, saying that Congress was attempting to interpret law, which is the prerogative of the judicial branch and not the legislative branch. Justice Anthony Kennedy warned, "If Congress could define its own powers by altering the Fourteenth Amendment's meaning, no longer would the Constitution be 'superior paramount law, unchangeable by ordinary means.' It would be 'on a level with ordinary legislative acts, and, like other acts,...alterable when the legislature shall please to alter it.' Under this approach, it is difficult to conceive of a principle that would limit congressional power." At the present, there is no reason to believe that all the issues regarding free exercise are "settled law." Quotes: "Precisely because 'we are a cosmopolitan nation made up of people of almost every conceivable religious preference,' and precisely because we value and protect that religious divergence, we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order. The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind--ranging from compulsory military service to the payment of taxes to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws, and traffic laws; to social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws, and laws providing for equality of opportunity for the races. The First Amendment's protection of religious liberty does not require this."
"This Court over the years painstakingly has developed a consistent and exacting standard to test the constitutionality of a state statute that burdens the free exercise of religion. Such a statute may stand only if the law in general, and the State's refusal to allow a religious exemption in particular, are justified by a compelling interest that cannot be served by less restrictive means. Until today, I thought this was a settled and inviolate principle of this Court's First Amendment jurisprudence. The majority, however, perfunctorily dismisses it as a "constitutional anomaly."... In short, it effectuates a wholesale overturning of settled law concerning the Religion Clauses of our Constitution. One hopes that the Court is aware of the consequences, and that its result is not a product of overreaction to the serious problems the country's drug crisis has generated."
"The United States is saying the original people of this land can't worship. We were worshipping a long time before the white man ever set foot on this turtle island. The issue is not dead, by no means. I'm not giving up; I have committed no crime. It's not a crime to pray in the old way."
Questions to Ponder:
Selected Bibliography: Epps, Garrett. To an Unknown God: Religious Freedom on Trial. (New York: St. Martin's Press, 2001.) Long, Carolyn. Religious Freedom and Indian Rights: The Case of Oregon v. Smith. (Lawrence, KS: The University of Kansas Press, 2000.) Mnookin, Robert H., and D. Kelly Weisberg. Child, Family, and State: Problems and Materials on Children and the Law. 4th ed. (Gaithersburg, MD: Aspen Law & Business, 2000.) Nowak, John, and Ronald D. Rotunda. Constitutional Law, 6th ed., Hornbook Series. (St. Paul, MN: West Group, 2000.) Tribe, Laurence M. American Constitutional Law, 3rd ed., University Textbook Series. (St. Paul, MN: West Publishing Company, 1999.) Wilkins, David E. and K. Tsianina Lomawaima. Uneven Ground: American Indian Sovereignty and Federal Law. (Norman, OK: University of Oklahoma Press, 2001.) Gateway Links: |
| Reno v. ACLU
(1997)
Decided by a vote of 7 to 2 Conflict: In 1996, Congress passed the Communications Decency Act, which made it a crime to send an indecent message or image to a young person under the age of 18, or to display patently offensive images or communications "in a manner available" to minors. Immediately after President Bill Clinton signed the act into law on February 8, a coalition led by the American Civil Liberties Union (ACLU) filed suit in federal court against the act. Other members to the challenge included the American Library Association, Planned Parenthood, activists for AIDS awareness and gay rights, Microsoft Corporation, Apple Computer, and internet providers America Online and CompuServe. A three-judge federal panel convened on March 12, 1996 to hear arguments; the courtroom was wired to the internet, apparently a first in U.S. court history. On June 12, 1996 the panel struck down the Communications Decency Act as unconstitutional. Janet Reno, Attorney General of the United States, appealed the decision to the Supreme Court in Reno v. ACLU. Opinion: Seven justices (John Paul Stevens who wrote the majority opinion, joined by Antonin Scalia, Anthony Kennedy, David Souter, Clarence Thomas, Ruth Bader Ginsburg, and Stephen Breyer) found the Communications Decency Act unconstitutional; Justice Sandra Day O'Connor filed an opinion concurring in part and dissenting in part, which was joined by Chief Justice William Rehnquist. The justices ruled that the internet functioned more like a library than a broadcast medium, and thus fell under the protection of the First Amendment. Although the justices conceded that constitutionally non-protected sexually explicit material was readily available online, it usually required intent to locate it. Furthermore, the act would silence legitimate speakers and create an "unnecessarily broad suppression of speech directed to adults." Thus, the Communication Decency Act's broad label of "indecency" created a content-based blanket restriction of free speech that was unconstitutional; while "obscenity" is not protected under the First Amendment, "indecency" may be. Context: In his opinion for the majority, Justice John Paul Stevens detailed the growth of computer and internet use in the United States, describing it as "a unique and wholly new medium of worldwide human communication." Thousands if not millions of American youth enjoyed access to the internet for education and personal entertainment. The United States government believed that the Supreme Court would treat as precedent several rulings that viewed obscene and indecent speech as non-protected, in particular when minors were involved. In Ginsberg v. New York (1968), the Supreme Court upheld a New York law barring the sale of obscene material to minors under the age of 17. The Court had also ruled in favor of the Federal Communications Commission in FCC v. Pacifica Foundation (1978), upholding administrative sanctions against a radio station that had broadcast George Carlin's "Filthy Words." Finally, in Renton v. Playtime Theaters (1986), the Supreme Court upheld a zoning ordinance, which banned adult movie theaters in residential areas. The government argued that obscenity on the internet fell outside the protection of the First Amendment, just as it had in broadcasting. Impact: The ACLU v. Reno was the first time an internet-related case was decided by the Supreme Court of the United States. The Court dismissed the government's analogy comparing the internet to a broadcast medium and instead endorsed the internet as analogous to a library, a "marketplace of ideas" worthy of First Amendment protection. Unlike the circumstances surrounding Congressional regulation of the broadcast spectrum, the internet, in the Court's opinion, was neither a scarce nor expensive "expressive commodity." Justice John Paul Stevens noted the richness of the internet in his opinion: "This dynamic, multifaceted category of communication includes not only traditional print and news services, but also audio, video, and still images, as well as interactive, real time dialogue. Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer. As the District Court found, 'the content on the Internet is as diverse as human thought.'" The Court correctly anticipated that the availability of obscene materials in cyberspace would not cause Americans to forgo using the internet, and that usership would continue to grow at a rapid pace. Quotes: "This Court should recognize that print media are the proper analogy for the Internet. Like print, the Internet is a means for the replication, storage and transmission of huge amounts of text of every description and on every topic. The Internet is like a giant library of all human knowledge, and imposing broadcast-style indecency regulations would have the same profoundly destructive effects as such standards would have if imposed upon the Library of Congress. Only by recognizing the analogy between the Internet and print media will this Court assure the appropriate protection of the medium likely to become the main conduit for personal, political and creative speech in the next century."
"Because there is no way for the vast majority of Internet speakers to distinguish between adults and minors in their audience, the CDA is the most restrictive censorship scheme imposed on any medium. For that reason, among many others, the government has yet to convince even a single federal judge that the statute, as written, can be sustained."
"...the Internet is not as 'invasive' as radio or television. The District Court specifically found that '[c]ommunications over the Internet do not invade an individual's home or appear on one's computer screen unbidden. Users seldom encounter content 'by accident.' It also found that '[a]lmost all sexually explicit images are preceded by warnings as to the content,' and cited testimony that 'odds are slim' that a user would come across a sexually explicit sight by accident.... It is true that we have repeatedly recognized the governmental interest in protecting children from harmful materials. But that interest does not justify an unnecessarily broad suppression of speech addressed to adults. As we have explained, the Government may not 'reduc[e] the adult population ... to ... only what is fit for children.'"
"Until gateway technology is available throughout cyberspace, and it is not in 1997, a speaker cannot be reasonably assured that the speech he displays will reach only adults because it is impossible to confine speech to an 'adult zone.' Thus, the only way for a speaker to avoid liability under the CDA is to refrain completely from using indecent speech. But this forced silence impinges on the First Amendment right of adults to make and obtain this speech and, for all intents and purposes, 'reduce[s] the adult population [on the Internet] to reading only what is fit for children.' As a result, the 'display' provision cannot withstand scrutiny."
Questions to Ponder:
Selected Bibliography: Heins, Marjorie. Not in Front of the Children: "Indecency," Censorship, and the Innocence of Youth. (New York: Hill and Wang, 2001.) Mnookin, Robert H., and D. Kelly Weisberg. Child, Family, and State: Problems and Materials on Children and the Law. 4th ed. (Gaithersburg: Aspen Law & Business, 2000.) Gateway Links: |
| Boy Scouts v. Dale
(2000)
Decided by a vote of 5 to 4: Conflict: The Boys Scouts of America, a private non-profit organization, revoked the adult membership of James Dale, a former Eagle Scout and troop leader who was a homosexual and gay rights activist. Dale filed suit against the Boy Scouts arguing the organization had violated New Jersey's public accommodation law, which banned discrimination on the basis of sexual orientation, listing as public zones everything from ice cream parlors to bowling alleys, state parks to clinics. The Boy Scouts argued that homosexual conduct was not consistent with the values it wished to instill in young boys, so their action was protected under the right to "expressive association;" the New Jersey Superior Court ruled in the Boy Scouts' favor. Dale's attorneys appealed arguing that homosexuality had no bearing on the expressive association rights of a large non-exclusive organization such as the Boy Scouts; this position was accepted by the New Jersey Supreme Court, which ruled in Dale's favor. The Boy Scouts of America appealed to the Supreme Court in Boys Scouts of America v. Dale (2000). Opinion: The Supreme Court narrowly ruled 5 to 4 in favor of the Boy Scouts with vigorous arguments presented in the majority opinion, authored by Chief Justice William Rehnquist, and the dissenting opinions, authored by Justice John Paul Stevens and Justice David Souter. The majority believed that the Boy Scouts of America were a legitimate expressive association that opposes homosexuality as an unacceptable lifestyle, so that their exclusion from membership of homosexuals was constitutional. The issue for the Court had to do with the right of an organization to control its own political, religious, or cultural messages. The minority disagreed saying that the Boy Scout organization's views on homosexuality were not central to their group's purpose, thus the Boy Scouts were not a constitutionally protected expressive association. They also argued that to deny homosexuals membership in the Boy Scouts is tantamount to saying that "homosexuals are simply so different from the rest of society that" they should be identified as a special group of people deserving special First Amendment treatment. Context: The Supreme Court has come to recognize the right of association, but only quite recently. Intimate association (what one does in private) is recognized as a protected right through the Fourth Amendment and privacy rights while expressive association is recognized as a protected right through the First Amendment's protection of free speech and peaceful assembly. The Red Scare, or the public hysteria and fear of the spread of communism in America, which followed the Russian Bolshevik Revolution in Russia, was translated in the 1920s and 1930s into state laws that hamstrung labor unions as well as the Socialist and Communist political parties. In DeJonge v. Oregon (1937), the Supreme Court ruled as invalid an Oregon statute against "criminal syndicalism," which created, in effect, guilt by association. New Jersey laws, which interfered in the ability to obtain permits for meetings by the Congress of Industrial Organizations (CIO, now part of the AFL-CIO), were struck down in Hague v. CIO (1939). In the 1960s, following the abuses of the McCarthy era, the Supreme Court repeatedly struck down laws that criminalized association with the Communist Party including Arizona's loyalty oath in Elfbrandt v. Russell (1965), and a Congressional statute aimed at defense plant workers in United States v. Robel (1967). A series of Supreme Court opinions beginning with NAACP v. Alabama (1958) also struck down measures designed to harass the National Association for the Advancement of Colored People (NAACP) as a means of curtailing the civil rights movement. In recent years, the Supreme Court has scrutinized private associations to make certain their main purpose is not discrimination, rather than association. In Roberts v. U.S. Jaycees (1984); Board of Directors of Rotary International v. Rotary Club of Duarte (1987); and New York State Club Association v. City of New York (1988), the Supreme Court ruled that the equal protection interests of women outweighed private clubs' association rights and required that they admit women. Because the issue of discrimination versus the right of expressive association in Boy Scouts was specifically about homosexuality, the case must be seen in the context of the gay civil rights movement. The rights of homosexuals to engage in consensual sex in the privacy of their homes was interpreted as constitutional in Lawrence v. Texas (2003), but the conflict between association and the right of homosexual people to be treated equally without discrimination in public remains unsettled. Some legal scholars and social historians contend that the issue involving gay rights differs from those involving women, blacks, and ethnic minorities in that the former reflects the general public's hostility toward homosexuals in general. They also note that this is a uniquely American hostility, offering as evidence the fact that the Boy Scouts of England and Canada do not bar homosexuals from membership. And the fact that the Girl Scouts of America have no similar ban suggests that the hostility towards gay men may be greater among the general public than its hostility towards gay women. Impact/Consequences: The test for when association rights end and discrimination begins remains unresolved and will continue to be refined by the Supreme Court. Just as the Court has labored to chart the constitutional course between free exercise and religious establishment, it is now charting the course between individuals' fundamental liberty rights to equal opportunity and personal expression and groups' rights to associate and express themselves through peaceful assembly. Quotes: "All persons shall have the opportunity to obtain employment, and to obtain all the accommodations, advantages, facilities, and privileges of any place of public accommodation, publicly assisted housing accommodation, and other real property without discrimination because of race, creed, color, national origin, ancestry, age, marital status, affectional or sexual orientation, familial status, or sex, subject only to conditions and limitations applicable alike to all persons."
"...members do not come together in Scouting around a shared 'moral code' or viewpoint regarding gay people, heterosexuality, homosexuality, or sexuality."
"Boy Scout members do not associate for the purpose of disseminating the belief that homosexuality is immoral; Boy Scouts discourages its leaders from disseminating *any* views on sexual issues; and Boy Scouts includes sponsors and members who subscribe to different views in respect of homosexuality."
"In light of the roles of uniformed adult leaders and their symbolic position in Scouting, to force Scouting to appoint persons who intend to be "open" and "honest" about their homosexuality would violate the organization's right to control its own message and to avoid association with a message with which it does not agree."
"...the New Jersey Supreme Court went a step further and applied its public accommodations law to a private entity without even attempting to tie the term 'place' to a physical location. As the definition of 'public accommodation' has expanded from clearly commercial entities, such as restaurants, bars, and hotels, to membership organizations such as the Boy Scouts, the potential for conflict between state public accommodations laws and the First Amendment rights of organizations has increased.... We are not, as we must not be, guided by our views of whether the Boy Scouts' teachings with respect to homosexual conduct are right or wrong; public or judicial disapproval of a tenet of an organization's expression does not justify the State's effort to compel the organization to accept members where such acceptance would derogate from the organization's expressive message. 'While the law is free to promote all sorts of conduct in place of harmful behavior, it is not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may strike the government.'"
"The evidence before this Court makes it exceptionally clear that BSA has, at most, simply adopted an exclusionary membership policy and has no shared goal of disapproving of homosexuality. BSA's mission statement and federal charter say nothing on the matter; its official membership policy is silent; its Scout Oath and Law--and accompanying definitions--are devoid of any view on the topic; its guidance for Scouts and Scoutmasters on sexuality declare that such matters are 'not construed to be Scouting's proper area,' but are the province of a Scout's parents and pastor; and BSA's posture respecting religion tolerates a wide variety of views on the issue of homosexuality. Moreover, there is simply no evidence that BSA otherwise teaches anything in this area, or that it instructs Scouts on matters involving homosexuality in ways not conveyed in the Boy Scout or Scoutmaster Handbooks. In short, Boy Scouts of America is simply silent on homosexuality. There is no shared goal or collective effort to foster a belief about homosexuality at all--let alone one that is significantly burdened by admitting homosexuals."
Questions to Ponder:
Selected Bibliography: Abernathy, M. Glenn. The Right of Assembly and Association, 2nd ed. (Columbia, SC: University of South Carolina Press, 1981.) Kurland, Philip B., ed. Free Speech and Association: The Supreme Court and the First Amendment. (Chicago: University of Chicago Press, 1975). Mauro, Tony. Illustrated Great Decisions of the Supreme Court. (Washington, DC: CQ Press, 2000.) McWhirter, Darien A. Exploring the Constitution Series: Freedom of Speech, Press, and Assembly. (Phoenix, AZ: The Oryx Press, 1994.) Nowak, John, and Ronald D. Rotunda. Constitutional Law, 6th ed., Hornbook Series. (St. Paul, MN: West Group, 2000.) Tribe, Laurence M. American Constitutional Law, 3rd ed., University Textbook Series. (St. Paul, MN: West Publishing Company, 1999.) Gateway Links: |
| Minor v. Happersett
(1874)
Decided by a vote of 9 to 0.
Conflict:
But Virginia Minor was no ordinary woman and neither was her husband, Francis, an ordinary man. She was the president of the Missouri National Woman Suffrage Association, and Francis Minor had laid out at its annual convention in 1869 the legal rationale for claiming that the Fourteenth Amendment guaranteed women the right to vote. Together they were a formidable team. He wrote, moreover, most of the legal briefs presented to the state and federal courts in this case. The challenge Virginia Minor threw at the Court began by asserting that "there can be no half-way citizenship" under the Constitution. She argued that the disfranchisement of women inflicted punishment on them without a judicial trial, and was a violation of the constitutional guarantee of due process. She also claimed that voting was protected under the First Amendment as a form of free expression, under the Thirteenth Amendment because the disfranchisement of citizens was a form of involuntary servitude, and under the Fourteenth Amendment because voting in national elections was a privilege and immunity of national citizenship rather than simply a privilege of state citizenship. Opinion:
Chief Justice Morrison Waite wrote the unanimous opinion of the Court. He noted that voting was not a right or privilege of the Constitution. He asserted that the framers of the Constitution had never intended to grant suffrage to women, despite the fact that they were indeed citizens and persons in the eyes of the law. Citizenship, in the Court's opinion, did not carry with it the right of suffrage. It was the Court's responsibility, he stated, "... to decide what the law is, not to declare what it should be." He maintained that Virginia Minor was indeed a citizen of the United States and the state of Missouri, but state law did not allow her to vote. States could, without violating the federal Constitution, deny women the right to vote because neither the original Constitution nor the Fourteenth Amendment required states to permit women to vote. In other words, the right to vote was not a federal privilege protected by the Constitution. It was a privilege to be granted by the states. Waite also pointed out, that no new state admitted to the Union had ever conferred the right of suffrage to women. The Court further stated that if the privileges and immunities clause of the Fourteenth Amendment gave all citizens the vote, there would have been no need for the Fifteenth Amendment, which allowed a subset of citizens (previously enslaved African-American men) to vote. Because no adjustment to the Fifteenth Amendment specifically stated that women could vote, it was constitutional for states to deny women the vote. Context:
Anthony's case was never taken to the Supreme Court. Because her counsel had paid her bail to keep her out of jail, she was not imprisoned and could not ask the Supreme Court to hear her case under a writ of habeas corpus. Also, because the judge in the case did not enforce his judgment, she had no claim to appeal a meaningless verdict. States could and did limit the right to vote based upon a variety of conditions over time including color, literacy, wealth, age, and sex. The Fifteenth Amendment set forth that states could not deny citizens the right to vote based on race, color, or previous condition of servitude. This amendment was designed to enable men to vote who had previously been enslaved, but because it did not include gender or sex the Amendment could not easily be used to support suffrage for women. Women in New Jersey had been given the right to vote in 1776 in the state constitution. In 1807 the state law was rewritten to only allow tax-paying, white male citizens to vote. In the Territory of Wyoming women could vote, and when Wyoming became a state in 1890 the grant of suffrage to women was maintained. By 1900, a handful of states, e.g., Utah, Idaho, and Colorado, gave women the vote, but it remained a state-by-state issue until the passage of the Nineteenth Amendment (1920). Impact/Consequences:
The defeat of Virginia Minor in 1872, along with the arrest of Susan B. Anthony in that same year, marked a turning point in the women's movement. Thereafter, women began to look less to the courts for redress under the Fourteenth and Fifteenth Amendments and more to the political struggle for a suffrage amendment to the Constitution. This produced a movement that placed most of its energy into gaining the vote while backing away from many other reforms aimed at full citizenship for women, such as equal pay, jury duty, inclusion in professions and occupations and schools, domicile rights, divorce reform, access to birth control and abortion, child custody, and working conditions. These issues did not emerge again as priorities until the 1960s. Quotes:
"...we declare our faith in the principles of self-government; our full equality with man in natural rights; that woman was made first for her own happiness, with the absolute right to herself--to all opportunities and advantages life affords for her complete development; and we deny that dogma for centuries, incorporated in the codes of all nations--that women was made for man--her best interests ... to be sacrificed to his will." --Declaration of Rights, 1876 "Sir, when the women ... love to be jostled ... [in] trade and business; when they love the treachery and the turmoil of politics; when they love the ... blood of battle better than they love the affections ... of home and family, then it will be time to talk about ... women voters." --George Williams, Oregon Republican Senator, 1866. Female Suffrage "would weaken and finally break up and destroy the Christian family. The social unit is the family, not the individual; and the greatest danger to American society is, that we are rapidly becoming a nation of isolated individuals, without family ties or affections. The family has already been much weakened, and is fast disappearing.... We do not believe women ... fit to have their own head ... Revelation asserts, a and universal experience proves that the man is the head of the woman, and that the woman is for the man, not the man for the woman." --Orestes Bronson, 1873. Are Women People Questions to Ponder:
What other requirements exist today that limit the right to vote? Should the legislative or judicial branch of the federal government decide who gets to vote? If it had been left to the states to allow women to vote, is it possible that women in some states would be able to vote for President while women in other states would not be able to vote. What would be the consequence of this? Do you think that it mattered that women won the right to vote? Present an argument that says that suffrage for women has not advanced equality for them. And why do you think so many women opposed the Equal Rights Amendment? Some women opposed giving women the right to vote because they thought it would weaken their power and authority as women. Does this make any sense? Present an argument that supports this position. Selected Bibliography:
Graham, Sara Hunter. Woman Suffrage and the New Democracy (1996) Lunardini, Ghristine A. From Equal Suffrage to Equal Rights: Alice Paul and the National Woman's Party, 1910-1929 (1986) Mathews, Jean. Woman's Struggle for Equality: The First Phase, 1828-1876 (1997) Smith-Rosenberg, Carroll. Disorderly Conduct: Visions of Gender Gateway Links: |
| Reynolds v. U.S.
(1878)
Decided by a vote of 8 to 1.
Conflict:
Although there were several technical irregularities in the trial court proceedings, the main issue for the Court dealt with a statute that made bigamy illegal. The First Amendment to the U.S. Constitution guaranteed the right to the "free exercise" of religion. But the question before the Court was one of not only faith or beliefs but of actions based upon those beliefs. Was George Reynolds guilty of breaking the law even if his religious beliefs condoned his actions? Opinion:
If Reynolds knew at the time of his second marriage that he was still married to his first wife this knowledge was enough to show his intent to break the law. It was found by the trial court that he was aware of the law against bigamy when he married his second wife. He was not excused from the requirements of the law just because he believed his actions to be sanctified by his church. Nor was he excused from the effects of the law just because he thought it was a bad law. The law was to be applied to all people regardless of their religious beliefs. Context:
The fact that Mormon women had voted to support polygamy did not affect the firmness of the Court's position (Maynard v. Hill, 1888 and Murphy v. Ramsey, 1885). In 1890, the Supreme Court reaffirmed that polygamy destroyed "the purity of the marriage relation" even as it "debase[d]" men as well as women. (Late Corporation of the Church of Jesus Christ of Latter-Day Saints v. United States, 1990; and Davis v. Benson, 1890). These decisions by the Court in 1890 ended for all practical purposes any questions about the legality of polygamy. The Mormon Church officially ended polygamy that same year. As a result, Utah became a state in 1896, granting suffrage to women in its state constitution. Impact/Consequences:
Usually with rights related to marriage, states have the authority to determine what the law is. The Court has determined, however, that states may not refuse to marry interracial couples (Loving v. Virginia, 1967). Currently, the debate centers around the concept of same-sex marriages and how the society does or does not benefit from such unions, and how individual rights are being affected. Some states have, in response to the organized efforts to make same-sex unions legal in all states, passed laws that define marriage as a union between one man and one woman. As the current Supreme Court is "under construction" while with the appointment of two new justices, it is not at all clear how the laws regarding marriage will develop. Speaking constitutionally, the Court's opinion in Reynolds looked beyond the language of the First Amendment to the "original intent" to find that religious practices that go against the public interest cannot be protected. Quotes:
"Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstance."
Questions to Ponder:
Why is it significant that this case developed in Utah? Should the federal government be able to dictate what people in Utah do? Should the legislative bodies of government have any say in religious activities? In what ways should the government limit acts based upon religious beliefs? Who should determine who can get married? Federal government? State government? Churches? Should there be any limitations on who can get married? Should it be limited by age, citizenship, who a person who is related to, race or gender? Selected Bibliography:
Cresswell, Stephen. Mormons, Cowboys, Moonshiners, and Klansmen: Federal Law Enforcement in the South and West, 1870-1893. 1991. Gordon, Sarah Barringer. The Mormon Church: Polygamy and Constitutional Conflict in the Nineteenth Century America. Chapil Hill: University of North Carolina Press, 2002. Weisbrod, Carol and Pamela Sheingorn, "Reynolds v. United States: Nineteenth-Century Forms of marriage and the Status of Women," Connecticut Law Review 10 (Summer 1978): 828-858. Beecher, Maureen Ursenbach et al. eds., Sisters in Spirit: Mormon Women in Historical and Cultural Perspective. Urbana: University of Illinois Press, 1987. Gateway Links: |
| U.S. v. Bitty
(1908)
Decided vote by 9 to 0
Conflict:
The Immigration Act of 1907 criminalized the act of bringing into the United States any woman or girl for the purpose of prostitution "or any other immoral purpose." John Bitty was arrested for bringing a woman, not his wife, to the United States. The woman, Violet Sterling, was defined by the charges as his concubine (or mistress). One issue before the Court was whether the federal authority (Congress) had the right to determine immigration matters as it related to prostitution. At first, states regulated their own ports. They had the authority to refuse to let certain persons, such as paupers and diseased persons, from coming ashore. An analogy would be stopping the importation of dangerous or illegal cargo by port authorities. Starting with cases in 1849, the Court ruled that the issue of immigration fell under federal control. Also at issue was the scope of the phrase "or any other immoral purpose" as it related to the limitations of who could come into the United States and for what purpose. The circuit court that heard Betty's appeal of his conviction, which carried imprisonment and deportation for Violent Sterling, concluded that the indictment should be dismissed. It ruled that the statute did not make it "an offense to bring or import an alien woman into the United States for the purpose of having her live as a concubine." In the circuit court's opinion, prostitution was one thing but living as a concubine was not distinctly forbidden by the law or clearly immoral. Opinion:
It was noted that the statute reflected common views on morality--basically, when it was proper for people to have sexual relations. The terms of the relationship, whether paid for or not, were to be regulated for the public good. The Court stated its view of concubines directly: "The prostitute may, in the popular sense, be more degraded in character than the concubine, but the latter none the less must be held to lead an immoral life, if any regard whatever be had to the views that are almost universally held in this country as to the relations which may rightfully, from the standpoint of morality, exist between man and woman in the matter of sexual intercourse." Context:
Additionally, the nation was excited in general about the dangers immigration posed to the social fabric of American society. Asian immigrants were routinely brutalized and legally discriminated against. Eastern Europeans were feared as potential anarchists and socialists who brought anti-American values to the nation. And more and more Americans wanted to cut off all immigration of foreigners, even those from England, in what amounted to a tidal wave of hysterical nativism. Justice John Marshall Harlan, who is remembered today for his powerful and solitary dissent from the majority opinion in Plessy v. Ferguson (1896), which upheld segregation of the races, had been an active member of the nativist Known-Nothing movement in his youth. Impact/Consequences:
In 1917, in the case of Caminetti v. United States, the Court upheld the Mann Act by criminalizing the trafficking of women across state lines. It also expanded the definition of immoral acts to include consensual sex acts outside of marriage. In this case, two young men were arrested and charged with debauchery, which the Mann Act had outlawed, for traveling with their girlfriends in a free-wheeling sexual escapade in California and Nevada. More famously, the African-American boxer, Jack Johnson, was arrested and sentenced to a year in jail for transporting his mistress, a white woman, from Pittsburgh to Chicago. Between 1910 and 1915, over 1000 defendants, mostly men, were found guilty of "white slavery" under the provisions of the Mann Act. In the years between 1927 and 1937, a study found that 156 women were sent to prison under the Mann Act, and around 23 percent of them were not prostitutes but unmarried women traveling with married men. The Court's opinion in Bitty and Caminetti looked upon female prostitutes as enslaved women that had to be protected and liberated from sexual deprivation. Few Americans in positions of authority could comprehend the possibility that some women might choose prostitution as a job or as a means of escaping abject poverty. In many ethnic working-class neighborhoods, prostitution was a means of keeping the family together during times of unemployment or when fathers and husbands had been hurt on the job without any medical insurance. That is one of the reasons that prostitution was never a popular reform movement among the working class during this era. In recent years the importation of children, either internationally or interstate, to become a part the pornographic industry intensified the debate about prostitution. Laws were extended in recent history to define child pornography as a form of child abuse and to extend protection to include boys. Despite arguments about free speech, the Court has determined that the government may interfere to regulate the pornography industry as it is related to children. Quotes:
"...nothing could be more grotesquely unjust than a code of morals, reinforced by laws, which relieves men from responsibility for irregular sexual acts, and for the same acts drives women to abortion, infanticide, prostitution, and self-destruction."
"People call me a feminist whenever I express sentiments that differentiate me from a doormat or a prostitute."
"Personally, I never met a white slave in my life ... If captive females were sold, drugged, or slugged into prostitution, I never knew a case."
Questions to Ponder:
The Immigration Act of 1907, the Mann Act, and U.S. v. Bitty appear to protect women and girls from being exploited as prostitutes. Do you think that the intent of the legislation and court cases were meant to stop John Bitty and Violet Sterling from having a sexual relationship? Does voluntary prostitution harm society? How? How do you distinguish between voluntary and forced prostitution? Should those who engage in prostitution simply be left alone by government regulation of any kind? Should prostitution be legalized, regulated, taxed? Does prostitution set the tone for condoned violence against women and children? Prostitution is often viewed as a topic relating to women and girls. How does the reality of male prostitution color your opinion of the legality of the profession? Selected Bibliography:
Friedman, Lawrence M. Crime and Punishment in American History. New York: Basic Books, 1993. Langum, David J. Crossing Over the Line, Legislating Morality and the Mann Act. Chicago and London: The University of Chicago Press, 1994. Outshoorn, Joyce. ed. The Politics of Prostitution, Women's Movements, Democratic States and the Globalization of Sex Commerce. Cambridge, UK ; New York: Cambridge University Press, 2004. Rowland, Debran. The Boundaries of Her Body, The Troubling History of Women's Rights in America. Naperville, Illinois: Sphinx Publishing, 2004. Gateway Links: |
| Muller v. OR
(1908)
Decided by vote of 9 to 0
Conflict:
The Constitutional issue in Muller relates to the right under the Fourteenth Amendment to liberty. The Fourteenth Amendment sets forth that states shall make no laws that limit a person's right to liberty. The Court held in Lochner v. New York that liberty included the right to contract for one's labor without government interference. Thus, New York could not make a law limiting the number of hours men are allowed to work each week. In addition to the Constitutional argument was the issue of women's ability to work. The State of Oregon argued that women were weaker than men and the State could legislate on their behalf to protect them against the harsher aspects of industrialism. In opposition, the employer argued that women, just like men, could negotiate their own terms of employment. Opinion:
Muller's argument centered on the right of individuals to contract for labor, without government interference, contending that if a worker did not want the job at the hours offered, he or she could refuse to work. He argued, too, that a state law that limited women but not men from freely making their contracts did not treat women equally to men. Muller argued that Oregon had overstepped its police power authority because the job at issue posed no danger to the public. On behalf of the State of Oregon Louis D. Brandeis (a future Supreme Court Justice) filed an extensive brief that mainly focused not on the Constitutionality of the state statute, but on the negative impact of strenuous industrial work on women as a group. He extended his idea about women's safety to the safety of the public. He asserted that because women were physically different than men (in that they were not as strong, they bore and raised children, and they were responsible for the home), they needed special treatment under the law. Oregon could legislate away a woman's right to contract for the benefit of the public good. The Court wholeheartedly agreed with Mr. Brandeis exclaiming that "healthy mothers were essential to vigorous offspring," and that the "physical well-being of women becomes an object of public interest and care in order to preserve the strength and vigor of the race." The Court said that the welfare of women and the public were in danger of unscrupulous employers. The Court stated that it was a fact of common knowledge that women were dependent on men for their well-being and health. Women were not on equal footing with men when it came to negotiating the terms of their employment. Oregon had a right to take note of the differences between men and women and legislate to protect women. Context:
. When the lawyer Louis D. Brandeis presented his argument before the Court he used a creative strategy never really employed before, one that relied on a massive amount of social evidence gathered by the Consumers League, an organization that had pushed hard for protective laws for women. This data, consisting of nearly every medical and government report on the effect of industrial work on the health of women, also included 95 pages of quotations on the topic from experts all over the industrial world. The "Brandeis brief" in Muller became the model that reformers began to use in defending reform legislation aimed at protecting individuals and groups of people harmed by social conditions and practices. The most celebrated example of this model was in Brown v. Board of Education (1954), which struck down segregation in public schools. Impact/Consequences:
Muller served future arguments in creating minimum work hours and wages for men and women. But in doing so it influenced the political and social debate about what work was appropriate for women. Almost 40 years later in United States v. Darby Lumber Company (1941) the Court conceded that men would also benefit from laws that required minimum wages and limited maximum hours. It held that there were social harms in overworking and underpaying all employees. In this decision the right of employees, regardless of sex, to use the authority of law to limit employers power over them as workers was affirmed. In Muller, the Court noted that a woman was in a "class by herself." Although the Court carved out an exception for women regarding appropriate work conditions, it did not see the need to consider women as a "suspect class" when defining rights under the Fourteenth Amendment. (A suspect classification is discrimination based on what the Court has declared to be irrational and constitutionally invalid.) Under the Fourteenth Amendment, laws that impact people as a race are seen as "suspect" and states are required to show that there is a "compelling state interest" in creating the law and that the law was written in the least restrictive way possible to achieve that interest. Laws that discriminate on the basis of age, for example, are not suspect in and of themselves in the eyes of the Court. Arguments to the Court that women, too, should be viewed as a "suspect" class have not been persuasive. The Court has determined that the restrictive laws that treat women and men differently need not only pass a "heightened scrutiny" test. The test requires that the state must explain why the law serves an "important government objective" and that the law must be "substantially related" to those objectives. At first the Court saw hour limitations differently than requirements regarding minimum wages. In Adkins v. Children's Hospital (1923), a federal minimum wage for women was held unconstitutional. Adkins was overturned by West Coast Hotel Co. v. Parrish (1937), in which the Court held that a state law could set minimum wages for women and minors. Quotes:
"Women are the only exploited group in history to have been idealized into powerlessness."
"We submit that in view of the facts set forth and of legislative action extending over a period of more than sixty years in the leading countries of Europe, and in twenty in our states, it cannot be said that the Legislature of Oregon had no reasonable ground for believing that the public health, safety, or welfare did not require a legal limitation on women's work in manufacturing and mechanical establishments and laundries to ten hours in one day."
"Thus, the majority opinion did not really have to consider the individual working woman involved in the case or other American women in terms of either their working conditions or their performances on the job. Instead, the Court was encouraged to concentrate on female physical weaknesses compared to males and their procreative functions."
Questions to Ponder:
Should pregnant women receive extra time off from work after giving birth? What about fathers--should fathers also get to take off time from work for the new parenting responsibilities? Are laws that provide women the right to take off time from work for pregnancy treating women as a group of people who need protection or are these laws creating a level playing field by taking into consideration the reality of the fact that it is women who get pregnant? Consider that the Muller Court thought it was doing the right thing when it said women as a sex are different than men and because of that difference they should not have to work as hard as men. Isn't this basically the same thing as saying that because women as a sex are different than men, they are not allowed to work in the same jobs for the same pay as men? If the Fourteenth Amendment does not extend equal rights to women, should there be an Equal Rights Amendment (ERA) that does guarantee women equal rights? If an ERA were passed would the courts then interpret that Amendment like the Fourteenth Amendment and require that state laws treat women and men equally--just like the Fourteenth Amendment requires the courts to treat people of different races the same? Is there a valid reason to deny, not just one particular job to a woman candidate, but also to deny a job to women as a group? How about to limiting jobs to women because they are also mothers? How do ideas about women's proper place in society impact ideas about procreation? If women's health concerns are a matter of public concern as stated in Muller, than does the public have a right to say if a woman should carry a pregnancy to term? The Court later created rights for couples to use birth control and a woman the right to an abortion under the right to privacy--a right not specifically mentioned in the Constitution. Should states be able to put limits on these rights? What kind of limits? What do you think about the idea that protective legislation of the sort that limits working hours for women but not for men actually hurt many working-class women in the sense that they could not earn enough money to support themselves. In other words, did this gender-biased legislation harm working class women more than it helped them? Selected Bibliography: Freison, Jennifer and Ronald K. L. Collins. "Looking Back on Muller v. Oregon." American Bar Association Journal 69 (March-April 1983): 294-98, 472-77. Kessler-Harris, Alice. Out to Work: A History of Wage-Earning Women in the United States. New York: Oxford University Press, 1982. McCall, Leslie. Complex Inequality: Gender, Race and Class in the New Economy. New York: Routledge, 2001. Gateway Links: |
| Roe v. Wade
(1973)
Decided by a vote of 7 to 2.
Battle
By the time the case reached the U. S. Supreme Court, various organizations and individuals joined in support or in opposition to the Texas law, which made it a crime for a woman to have an abortion and for a doctor to assist in an abortion. Among the supporters of the Texas law were six state attorney generals and several right-to-life associations--principally Roman Catholic-sponsored advocacy groups. Those who joined the case in support of abortion included the American College of Obstetricians and Gynecologists, the Planned Parenthood Federation of America, the American Association of University Women, and the National Organization for Women. Context
By grounding Roe in the right-to-privacy precedent, the Court avoided saying that abortion laws discriminated against women on the basis of their gender. In other words, women were not granted the right to have an abortion as a matter of reproductive freedom or gender equality. They were granted the right to an abortion as a matter of privacy. And when the Court talks about abortion laws violating the right to privacy, it means the privacy that exists between a doctor (usually male) and a female patient. By not seeing the issue as one of gender discrimination--in the sense that abortion laws affect women fundamentally and not men, the Court opened the door to challenges based on the belief that life begins at the moment of conception. But it also avoided opening the door of gender discrimination, which is a much more proactive stance with the potential of putting the government in the business of protecting abortions and even helping women to obtain them. Opinion
Blackmun based his opinion on a woman's right to privacy, using a precedent established in an earlier case (Grisswold v. Connecticut, 1965). In Grisswold, the Court held that state laws restricting the right to use contraceptives violated a person's constitutional right to privacy. For the Court, the decision to seek an abortion was a personal matter of great intimacy between a woman and her doctor, and government had no right to intervene in such personal choices. Impact/Consequences
Those who support Roe argue that the legal recognition of the rights of women to control their reproductive lives has allowed them greater freedom to participate in American society at large. Justice Blackmun called it "a step that had to be taken as we go down the road toward the full emancipation of women." Those who oppose Roe contend that it makes legal what amounts to the killing of innocent human beings. In the years since Roe, a well-organized antiabortion movement went on the attack to try to limit abortion at the state and federal level through legislation. Representative Henry Hyde, a Republican from Illinois, persuaded Congress to pass the Hyde Amendment in 1976, which prohibited the use of federal Medicaid funds for abortion. The Supreme Court upheld this act in Maher v. Roe (1977). Also, the Court upheld by a 6 to 3 majority a Connecticut law that disallowed the use of Medicaid funds for most abortions. This was followed in 1981 by a ruling in which the Court voted 5 to 4 to bar all federal funding for abortions except in the case of rape, incest, or to protect the life of the mother. In Webster v. Reproductive Health Services (1989), the Court upheld by a 5 to 4 vote a Missouri law that prohibited the use of public facilities or public workers to perform abortions. On the other hand, the Court struck down state laws that placed an undue burden on women seeking abortions under Roe while upholding state laws that limited the activities of antiabortion protestors outside abortion clinics (Hill v. Colorado-1999) In Planned Parenthood v. Casey (1992), four Justices (Rehnquist, White, Scalia, and Thomas) voted to overturn Roe, but Justice Sandra Day O'Connor joined with Justices Kennedy, Souter, Blackmun, and Stevens to reaffirm the "essential holding" of Roe. This is where the matter stands today. Most Court observers believe, however, that President George W. Bush's appointment of two new justices to fill the vacancies caused by the resignation of Justice Sandra Day O'Connor and the death of Chief Justice William Rehnquist may result in a Court willing to overturn Roe or to limit significantly its application. Quotes
"Even today, when society's views on abortion are changing, the very existence of the debate is evidence that the "right" to an abortion is not so universally accepted as the appellant would have us believe." Justice William Rehnquist, in his dissenting opinion on Roe v. Wade, 1973 "Liberty finds no refuge in a jurisprudence of doubt. Yet, 19 years after our holding that the Constitution protects a woman's right to terminate her pregnancy in its early stages, Roe v. Wade (1973), that definition of liberty is still questioned." Justice O'Connor', Planned Parenthood v. Casey, 1992. "We continue to believe that Roe was wrongly decided and should be overruled."--John G. Roberts, in a Supreme Court brief he co-wrote for the first Bush administration while working for U. S. Solicitor General, 1991 "Roe v. Wade is the settled law of the land. It's a little more than settled. It was reaffirmed in the face of a challenge that it should be overruled in the Casey decision. Accordingly, it's the settled law of the land. There's nothing in my personal views that would prevent me from fully and faithfully applying that precedent, as well as Casey."--John G. Roberts, during the confirmation hearing, when asked for his own views on Roe v. Wade, 2005 Questions to Ponder:
The Court based its opinion in support of abortion on a woman's right to privacy protections in the Constitution. But nowhere in the Constitution is the right to privacy mentioned specifically. So how could the Court use this as the basis of its decision? Are there times when the government has the right to interfere in the privacy of citizens? On what grounds can this happen? Some opponents of abortion worry that it leaves the door open for eugenics and the selective breeding of human beings. What do you think about this? How would you oppose or support this contention. Supreme Court Justice Thurgood Marshall asked the defense lawyers in Roe a simple question that they had difficulty answering: When does human life begin? How would you answer this question? Some would argue that a woman's right to an abortion is an issue of civil rights? How do you think this might be argued? Do minors have the right to choose an abortion? If yes, why? And are there any age restrictions that should be enforced? Do you think a young girl should be forced to get the permission of her parents before having an abortion? Explain your answer. Selected Bibliography
Garrow, David J. Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade (1994) Gold, Rebecca Benson. Abortion and Women's Health: A Turning Point for America?. New York: The Alan Guttmacher Institute. 1990. Hoff, Joan. Law Gender & Justice: A Legal Historyof U.S. Women. New York: New York University Press, 1991. Hull, N. E. H., and Williamjames Hoffer and Peter Charles Hoffer, eds. The Abortion Rights Controversy in America: A Legal Reader. (2004) Richardson, Laurel. The Dynamics of Sex and Gender: A Sociological Perspective (1988) Rhodes, Deborah. Speaking of Sex: The Denial of Gender Inequality (1997) Roland, Debran. The Boundaries of Her Body: The Troubling History of Women's Rights in America (2004) The Oxford Companion to the Supreme Court of the United States. editor Kermit L. Hall. Oxford: Oxford University Press, Inc., 2005. Wood, Douglas S. "Who is Jane Roe?" CNN Interactive. 1998. Gateway Links: |