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Section 1: The First Amendment: Your Freedom of Expression


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Title: Section 1: The First Amendment: Your Freedom of Expression

(No Transcript)
Chapter 13 Supreme Court Cases
  • Section 1 The First Amendment Your Freedom of
  • Section 2 The Fourth Amendment Your Right to Be
  • Section 3 Due Process and the Fourteenth
  • Section 4 Federalism and the Supreme Court

Section 1 at a Glance
  • The First Amendment Your Freedom of Expression
  • Students Right of Expression Do students who
    are not being disruptive lose their
    constitutional right to freedom of speech or
    expression when they enter the schoolhouse door?
  • Learn about the fundamental freedoms guaranteed
    by the First Amendment to the Constitution.
  • The Plays the Thing Use your knowledge to
    prepare and argue a case in federal district
    court alleging a violation of freedom of speech.
    Your arguments must be guided by both the First
    Amendment and Supreme Court decisions on this

The First Amendment Your Freedom of Expression
Reading Focus Your freedom of expressionthe
right to practice your religious beliefs to
hold, express, and publish ideas and opinions to
gather with others and to ask the government to
correct its mistakesis the cornerstone of our
democracy. Through its power to interpret the
Constitution, the Supreme Court can expandor
limityour rights.
Students Right of Expression
In the mid-1960s public opinion about the Vietnam
War was divided. By 1963, protests and
demonstrations against the war began to spread,
especially on college campuses. Within a couple
of years, some high school and middle school
students also began to protest the Vietnam War.
Students Right of Expression (contd.)
  • The Supreme Court Decision
  • Tinkers and others argued schools ban on
    armbands violated right to free speech under
    First, Fourteenth Amendmentsarmbands symbolic
  • School district argued ban intended to prevent
    classroom disruption, not suppress expression
    argued reasonable use of power to preserve order
  • 1969 Tinker v. Des Moines School District
    reversed lower courts ruling
  • Constitutional rights not shed at schoolhouse
  • Court agreed school authorities have right to
    maintain order, but protesters did not interrupt
    activities or seek to intrude in school affairs
  • Court said schools can regulate student speech
    when speech would be disruptive and interfere
    with rights of other students
  • Tinker test if expression does not substantially
    interfere with school operation, regulating that
    speech violates the Constitutions protection of
    free expression

Students Right of Expression (contd.)
  • After Tinker
  • Tinker case remains leading case dealing with
    free-expression rights of public school students
  • 1980s
  • Times and court membership changed
  • Court gradually modified and expanded concept of
    school disruption
  • Examples
  • 1986 Bethel School District v. Fraser upheld
    suspension of student for giving speech
    containing vulgar sexual references
  • 1988 In Hazelwood School District v. Kuhlmeier
    justices upheld right of school officials to
    censor school newspaper if school believes
    content inconsistent with legitimate educational
  • Supreme Court has limited student expression on
    and off campus in recent years

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1. Are protests like Tinkers disruptive of
school activities? Explain your point of view.
2. Should school authorities have the right to
censor student speeches or newspapers? Why or why
3. Is the Tinker test an adequate way to handle
issues related to students freedom of
expression? Why or why not?
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Freedom of Religion
The First Amendment guarantees your right to
freedom of expression, the right of citizens to
hold, explore, exchange, express, and debate
ideas. Congress shall make no law respecting an
establishment of religion, or prohibiting the
free exercise thereof. These two guarantees are
known as the establishment clause and the free
exercise clause.
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Freedom of Religion
  • Religion and Instruction
  • Teaching about religion and the Bible allowable
  • Instruction must be done in nonreligious manner
  • Cannot include teaching of religious beliefs
  • 1968 Epperson v. Arkansas
  • Overturned law that prohibited teaching of
  • 1987 Edwards v. Aguillard
  • Voided Louisiana law requiring religious view
    known as creation science to be taught alongside

Freedom of Religion (contd.)
  • The Free Exercise Clause
  • First Amendment seems to make freedom of
    religious belief an absolute right
  • Court has drawn distinction between right to
    believe and right to express beliefs through
  • Difference noted in first case heard involving
    free exercise clause
  • 1879 In Reynolds v. United States Court upheld
    conviction of George Reynolds for practice of
    polygamy, having more than one wife
  • Reynolds belonged to Mormon Church, which allowed
  • Federal law prohibited practice of polygamy
  • Court ruled free exercise clause did not protect
    religious practices subversive of good order,
    even if they reflected religious beliefs
  • Court developed principle into compelling
    interest test
  • Requires government to have compelling reason for
    banning religious practice as necessary to
    protect society

Compelling Interest Test
  • West Virginia State Board of Education v.
    Barnette, 1943
  • Court upheld students right to refuse to salute
    flag, recite Pledge if it violated their
    religious beliefs
  • Making patriotic ceremonies voluntary did no harm
    to society
  • Sherbert v. Verner, 1963
  • Reversed South Carolinas denial of unemployment
    benefits to woman fired for refusing to work on
    Saturdays, her day of worship
  • Societys gain did not outweigh persons freedom
    to follow beliefs
  • Goldman v. Weinberger, 1986
  • Upheld Air Forces ban on wearing nonmilitary
  • Jewish man could not wear yarmulke while on duty
  • Based on military need to foster unity and group
  • Employment Division v. Smith, 1990
  • Upheld right to deny unemployment benefits for
    two Native Americans fired for ingesting peyote
  • States may enforce laws that incidentally
    interfere with religious practices

Contrasting How did the Courts position on
religious expression in Sherbert v. Verner
differ from its position in the Smith case?
Answer(s) To be announced (TBA) in class.
Freedom of Speech
Congress shall make no lawabridging freedom of
speech, or of the press Is speech only spoken
words, or does it include other forms of
expression? Are there limits to this freedom?
(No Transcript)
Summarizing What limits are placed on student
Answer(s) TBA in class.
Freedom of Petition and Assembly
  • First Amendment recognizes, protects right to
    petition government for redress of grievancesto
    remove the cause of a complaint and make things
  • Freedom of petition right to ask government to
    act to correct injustice without fear of
    punishment for making request
  • Rights of assembly and petition go hand in hand

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Drawing Conclusions How do the freedoms of
petition and assembly support a republican form
of government?
Answer(s) TBA in class.
Freedom of Petition and Assembly (contd.)
  • Student Assembly
  • Limits that apply to public also apply to
    students in school
  • Court has been more restrictive of student rights
  • Schools have right to control time, place, manner
    of gatherings, set restrictions on school clubs,
    have right to deny some clubs permission to form

Making Generalizations What kinds of school
clubs are not protected by the right of assembly?
Answer(s) TBA in class.
SimulationThe Plays the Thing
Will students from Home City High School be
allowed to stage their play? Issues of student
free speech can take many forms, including plays
performed by student drama groups. Using what you
have learned in Section 1, complete the
simulation about a fictional lawsuit seeking
permission to perform a student play.
Simulation (contd.)
  • Roles
  • Federal judge
  • Jurors
  • Plaintiffs attorneys
  • Defendants attorneys
  • Attorney for Civil Liberties Association (CLA)
  • Attorney for Center for Free Student Press (CFSP)
  • Attorney for Association of United Churches (AUC)
  • Attorney for Association of School Administrators
  • Drama club members
  • School principal
  • School newspaper editor
  • Other witnesses

Simulation (contd.)
  • The Situation
  • Drama club wants to stage play on life,
    teachings, impact of historical founder of
    Eastern religion
  • Permission to present play to all-school assembly
  • Offer to present play during lunch with voluntary
    attendance also denied
  • Student started petition to demand presentation
    of play
  • Petition seized, student responsible for petition
  • School newspaper prepared story on controversy
  • School officials refused to allow story to be
  • Students filed lawsuit in federal court

Simulation (contd.)
  • The Trial
  • Attorneys for plaintiffs, defendants will present
  • Plaintiff case presented first, followed by
  • Each side calls witnesses, including expert
  • Organizations present arguments at conclusion of
    appropriate sides case
  • Jury renders verdict for plaintiffs or defendants
    after each sides case heard

Simulation (contd.)
Debriefing After the jury has reached its
verdict, discuss the jurys findings as a class.
Assess whether the jury, the attorneys, and
expert witnesses for each side correctly applied
the First Amendment and case law to the facts in
this trial. Then write a one-page summary
explaining whether you agree with the verdict and
why or why not.
Section 2 at a Glance
  • The Fourth Amendment Your Right To Be Secure
  • The Right to Privacy Learn about a 2005 case in
    which the police used a sniffer dog to search
    for illegal drugs during a routine traffic stop.
  • Learn about the privacy protections the Fourth
    Amendment provides and the circumstances under
    which the government can infringe upon your right
    of privacy.
  • Have You Been Seized? Use your knowledge to
    argue a case involving an alleged search and
    seizure violation.

The Fourth Amendment Your Right To Be Secure
Reading Focus The Fourth Amendment guarantees
your right to be secure against unreasonable
searches and seizuresin other words, it
guarantees that you have rights to some sorts of
privacy. As with First Amendment rights, Fourth
Amendment rights are not absolute and are subject
to judicial interpretation. In this cyber age,
protection of these rights is perhaps more
important than ever.
(No Transcript)
The Right to Privacy
Should authorities be able to search a car or
home with sniffer dogs, or an electronic
sensor? Neither method requires authorities to
enter the car or building, so are these really
searches? When, if ever, should they be legal?
The Right to Privacy (contd.)
  • The Court Hears Illinois v. Caballes
  • 2003, Illinois Supreme Court reversed Caballess
    conviction, said drug-sniffing dog at routine
    traffic stop violated Fourth Amendment rights
  • State appealed ruling to Supreme Court
  • 2004, Supreme Court hears Illinois v. Caballes
  • Government argued dog sniff not search, does not
    violate privacy
  • Justice Souter agreed not full-blown search but
    asked if it were constitutional, what would
    prevent police from walking dogs around every
    private home just to see if they get a sniff of
  • Justice Scalia noted Court had ruled Fourth
    Amendment rights violated when police used
    thermal-imaging devices to see if people were
    growing marijuana in homes
  • Caballess attorney argued sniff was search, like
    scanner revealed something hidden from view
    police had no reasonable suspicion to search car

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The Caballes Decision
  • 2005, Illinois v. Caballes 62 decisionCourt
    reversed Illinois Supreme Court, upheld
    Caballess conviction
  • Majority opinion person has no legitimate
    privacy interest in possessing drugs or contraband
  • Government action indicating possession of
    contraband does not violate 4th Amendment privacy
  • Court agreed with states argument that dog sniff
    not a search
  • If traffic stop lawful, police had right to use
    sniffer dog
  • Dissenting opinions dogs can be wrong as result
    of poor training, errors by handler, dogs
    limited ability
  • Dogs bark not probable cause
  • Justice Ginsburg every traffic stop could
    become an occasion to call in the dogs
  • Worried Court decision could clear way for police
    with dogs to be stationed at long traffic lights,
    circling cars waiting for green lights

1. Is a trained dogs sniff of someone or
something a search of that person or thing?
Explain why or why not.
2. Do you agree with the majority of the Court in
the Caballes case or with the dissenting
opinions? Explain why.
3. Would your opinion in the Caballes case be
different if it had involved a bomb-sniffing dog
instead? Explain why or why not.
Understanding Search and Seizure
The Fourth Amendment states that the right of
the people to be secure in their persons, homes,
papers and effects, against unreasonable search
and seizure, shall not be violated. This
guarantee applies only to searches and seizures
made by the government it does not protect
against unreasonable searches and seizures by
private organizations or citizens. It did not
apply to state governments until 1949, and the
Supreme Court did not apply the exclusionary rule
to state courts until 1961.
Probable Cause and Warrants
To obtain a warranta court order to search for
something or seize someonethere must be probable
cause to believe the search will produce evidence
of a crime, or that the person seized committed a
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(No Transcript)
Summarizing - 1 How are search and seizure
Answer(s) Will be discussed in class.
The Fourth Amendment and Privacy
  • Katz v. United States Fourth Amendment protects
    people, not just places
  • Wherever a person is, his/her right to privacy
    protected if he/she has exhibited reasonable
    expectation of privacy
  • Level of privacy depends in part on where person
  • Not as much privacy expected in coffee shop as in
  • No matter where person is, he/she has no
    expectation of privacy if in possession of
    illegal drugs
  • Court has said search or seizure lawful when it
    begins can violate Fourth Amendment if way search
    carried out unreasonably infringes upon interests
    protected by Constitution
  • United States v. Jacobson, 1984

The Court has used all of these principles to
decide when and how far protections under the
Fourth Amendment apply.
Searches of Homes
  • Court applies highest expectation of privacy to
    peoples homes
  • Warrant required in most cases to search homes
  • 1998, Minnesota v. Carter no reasonable
    expectation of privacy when illegal drugs involved
  • 1988, California v. Greenwood garbage cans may
    be searched without warrant no expectation of
    privacy for items thrown away
  • 1986, California v. Ciraolo arrest allowed after
    marijuana spotted from police plane
  • 2001, Kyllo v. United States Court drew line at
    use of devices to look through walls of homes
    from outside
  • Overturned arrest of man because thermal scan of
    home revealed marijuana growing inside
  • Thermal scan reveals information normally
    available only with actual intrusion into house,
    requiring warrant
  • Authorities did not have warrant, therefore
    seizure of evidence, arrest unconstitutional

  • Personal Privacy
  • Fourth Amendment provides people will be secure
    in persons from unreasonable search, seizure
  • Court has interpreted guarantee in variety of
    ways, applied differently in number of
  • Stop and Frisk
  • Generally police do not have right to stop people
    randomly and search them
  • 1968, Terry v. Ohio police can stop people who
    seem to be acting suspiciously, pat down for
  • Neither warrant nor probable cause needed for
    what now is called Terry stop
  • Public safety outweighs individuals privacy right

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Intrusive Searches
  • Degree to which authorities may go in searching
    persons body depends on situation
  • Three questions considered in deciding if search
  • What is legal status of person being searched
  • How invasive is search
  • Does search serve safety, security need for
    societythis standard called special needs test
  • Examples
  • Strip searches of prisoners permissible
  • Fingerprinting arrested persons allowable
  • Fingerprinting persons not under arrest requires
    probable cause
  • Blood or DNA testing more invasive, requires
    search warrant
  • Blood testing of arrested person requires only
    probable cause

Drug Testing
  • Drug tests require blood, urine samples
  • Considered intrusive searches
  • In most cases require warrant, at least probable
  • Court has removed requirement for certain groups
    of people
  • Government can require workers in jobs where
    public safety important to be tested without
    probable cause or suspicion
  • 1995, Vernonia School District v. Acton schools
    may require random drug testing of athletes even
    if no one suspected of drug use
  • Deterring drug use by our nations
    school-children is at least as important
    asdeterring drug use by engineers and trainmen

Students Fourth Amendment Rights
  • Court has generally limited students Fourth
    Amendment rights
  • Reasoning same as limiting students First
    Amendment rights
  • Students rights may be restricted in order to
    preserve proper learning environment in schools
  • 1985, New Jersey v. T.L.O.
  • Probable cause not needed for school officials to
    search students if circumstances make search
  • T.L.O. teacher found girl smoking in restroom
  • Girl denied smoking to vice principal
  • Search of purse revealed cigarettes, marijuana
  • Court search not unreasonable under
  • After T.L.O., most student search cases decided
    at state level
  • Any search by police officers still requires

Private Communication
  • 1967, Katz v. United States landmark Supreme
    Court decision on wiretapping, other forms of
    electronic surveillance
  • Since Katz, use of computers, cell phones,
    personal digital assistants, other wireless
    devices has created new kinds of searches,
    applications of Fourth Amendment
  • Cases involving cyber-surveillance have yet to
    reach Supreme Court

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  • Wireless Searches
  • Many of todays communications devices use
    wireless communication
  • Anyone with scanner tuned to proper frequencies
    can intercept signals
  • Such interception illegal, except for law
    enforcement agencies
  • Warrant must be obtained to monitor wireless
  • PATRIOT Actsome standards for obtaining warrants
    relaxed, eliminated
  • National Security and the Courts
  • Several 4th Amendment challenges to government
    surveillance programs now before federal courts
  • 2006, United States v. Arnold case of search of
    laptop contents at airport
  • 2006, class-action suit accusing ATT of turning
    over phone records of millions of Americans to
    the National Security Agency
  • Government argues that actions necessary to
    protect national security
  • Supreme Court likely to be asked to decide these
    issues, other similar cases

Summarizing - 2 Why are National Security
Letters controversial?
Answer(s) Will be discussed in class.
SimulationHave You Been Seized?
How will the Supreme Court rule in State v.
Martin? Issues relating to Fourth Amendment
searches and seizures have been brought before
courts for many years, and still not every
question has been resolved. In this simulation
you will argue one such Fourth Amendment issue
before the Supreme Court.
Simulation (contd.)
  • Roles
  • Chief justice of the United States
  • Eight associate justices
  • Plaintiffs attorneys
  • Defendants attorneys
  • Attorneys from the National Association of Law
    Enforcement Members (NALEM)
  • Attorneys from the Foundation for Fourth
    Amendment Freedoms (FFAF)

Simulation (contd.)
  • The Situation
  • Police discover small amount of illegal drugs on
    18-year-old in pat-down search during traffic
  • 18-year-old convicted in state district court for
    drug possession
  • Conviction appealed on grounds that Fourth
    Amendment rights violated, search illegal because
    he was passenger, no probable cause to search him
  • State supreme court agreed, overturned conviction
  • State has appealed ruling to U.S. Supreme Court

Simulation (contd.)
  • The Hearing
  • Attorneys for both plaintiff, defendant will
    present oral arguments to Court
  • Plaintiffs case presented first, followed by
  • Justices may interrupt each argument to ask
  • After each side has made argument, Court will
    rule, either upholding or reversing state supreme
    courts ruling overturning conviction

Simulation (contd.)
Debriefing While the Supreme Court is
deliberating its decision, write a one-page
decision of your own, revealing how you would
decide the case if you were on the Court. After
the Courts decision is read, discuss whether you
agree or disagree with the Courts opinion or
Section 3 at a Glance
  • Due Process and the Fourteenth Amendment
  • Due Process and Public Schools Learn about how
    the Fourteenth Amendment right to due process
    applies to public schools.
  • Learn about how the Supreme Court has used the
    due process clause of the Fourteenth Amendment to
    expand and protect peoples rights.
  • Terrorists and Due Process Use your knowledge to
    argue a case involving due process issues before
    the Supreme Court.

(No Transcript)
Due Process and the Fourteenth Amendment
Reading Focus The Fourth Amendment requires
that states provide due process and equal
protection under the law. These requirements have
made this amendment one of the most important
parts of the Constitution.
Due Process and Public Schools
What due process rights, if any, do students have
if they are facing suspension from public school?
The Supreme Court addressed the issue in Goss v.
Lopez in 1975.
Due Process and Public Schools (contd.)
  • The Court Hears Goss v. Lopez
  • School argued because there was no constitutional
    right in Ohio to public education, no requirement
    school provide due process
  • Attorneys for Lopez pointed to Ohio law requiring
    state to provide free education for all students
  • Argued suspending without due process
    unconstitutionally deprived students of this
  • The Supreme Courts Decision
  • 1975 in 54 decision Court said because Ohio
    offered public education, students could not be
    deprived of that right without due process
  • Justice White Ohio had made education a property
  • Either before suspension, or soon thereafter,
    students must be given hearing, allowed to
    explain events

Courts have consistently interpreted Goss to mean
that students who are suspended for longer than
10 days must be granted more due process rights.
1. Do you agree that a public education is a
property right? Why or why not?
2. Should students suspended for fewer than 10
days for a rule violation have a right to a
hearing? Why or why not?
3. Should students who are expelled receive more
due process than those who are suspended? Explain
why or why not.
Due Process and Equal Protection
  • 14th Amendment no state shall deprive any
    person of life, liberty, or property without due
    processnor deny any personequal protection of
    the laws
  • Court has applied many Bill of Rights guarantees
    to actions of states through doctrine of
    incorporation, and has applied idea of equal
    protection against actions of federal government
  • Due processlaws, process, and procedures of
    applying them must be fair
  • Equal protectioneach person in same, similar
    circumstances stands before law equally
  • Procedural due processcertain procedures must be
    followed in carrying out, enforcing law
  • Substantive due processif way laws carried out
    are fair, then laws themselves must be fair
  • People have natural rights not listed in
  • To be fair a law cannot violate peoples natural

Summarizing Explain how procedural due process
and substantive due process ensure that a person
will have a fair trial.
Answer(s) Will be discussed in class.
(No Transcript)
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Substantive Due Process
  • Constitution does not create or grant rights
  • Protects, guarantees unalienable rights
    referred to in Declaration
  • Purpose of 9th Amendment recognize, protect
    rights not explicitly statedunenumerated rights
  • Court has used doctrine of substantive due
    process to decide what some of those rights are,
    including certain property rights, right to
    privacy, others

(No Transcript)
The Decision and the Dissent
  • 54 decision, justices agreed with bakeshop
  • Overturned conviction, ruled Bakeshop Act
  • When considering if exercise of states police
    power to safeguard public health constitutional,
    Court must ask if regulation reasonable and
    necessary, or unreasonable, unnecessary,
  • Court did not believe long hours in bakery
  • Law unreasonable interference with rights of
    individuals to make contracts regarding labor
  • Strong dissents
  • Justices Harland, Holmes argued Courts majority
    should have respected legislatures judgment
    instead of own point of view
  • A constitution is not intended to embody a
    particular economic theory...

Lochners Effect
  • After Lochner, first criticisms of substantive
    due process heard
  • Court attacked for using doctrine to impose its
    views, values on nation
  • As Court continued to apply substantive due
    process to laws affecting property rights,
    criticism grew
  • 1938, United States v. Carolene Products Company
    Court said it would apply only rational basis
    test to economic regulations
  • Rational basis test meant for a law to be upheld,
    government would have to show only it had good
    reasonrational basisfor passing law
  • When Court called upon to review law, rational
    basis test the least strict standard it can apply

The practical result of the Courts announcement
was that it nearly stopped applying substantive
due process to property rights. However, it said
it would apply a stricter test to laws that
affected personal rights.
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Protecting Personal Rights
After Carolene, the Court did begin to use
substantive due process to define basic personal
rights, none of which are expressly listed in the
  • Right to Privacy
  • 1965, Griswold v. Connecticut privacy right
    first recognized by Court
  • 1973, Roe v. Wade expanded privacy right
  • Determining the Right to Die
  • 1983 Nancy Beth Cruzan critically injured in
    auto accident
  • Doctors said she would never recover from
    persistent vegetative state
  • 1987 hospital refused parents request to remove
    feeding tube and allow Nancy to die
  • Parents argued daughter would not want to live in
    such a condition

(No Transcript)
Protecting Personal Rights
  • The Cruzan Decision
  • Trial court ruled for parents Missouri Supreme
    Court overruled, holding there was no clear,
    convincing evidence Nancy wished to die
  • 1990, Cruzan v. Director, Missouri State
    Department of Public Health Court ruled right to
    refuse medical treatment a privacy right
    protected by 14th Amendment, but also upheld
    ruling of Missouri Supreme Courtcould not end
    treatment without evidence of what patient wanted
  • The Effect of Cruzan
  • Case established persons right to refuse medical
    treatment, and to die
  • Also set due process standard by which someone
    else could make decision if patient unable to do
  • Cruzans parents went back to state court with
    evidence of conversations in which Nancy said she
    would never want to live like a vegetable
  • Court ordered feeding tube removed she died 12
    days later

Identifying the Main Idea How has the Courts
theory and use of substantive due process changed?
Answer(s) TBA in class.
Procedural Due Process
Procedural due process has a very different
history from substantive due process. Procedural
due process grew out of Magna Carta, the 1215
document that required the English king to follow
the law of the land.
  • Stanley v. Illinois (1972)
  • Illinois law defined parent as father and
    mother of child born to married couple, and the
    mothernot fatherof child born to unmarried
  • Peter Stanley not married to Joan Stanley, mother
    of their three children
  • State removed children from Stanleys home when
    Joan died because according to states
    definition, Peter Stanley was not parent
  • Peter Stanley sued state to regain custody of
  • 1972 Court agreed that Stanley had been denied
    due process, and that treating unwed fathers
    differently violated equal protection clause
  • Court said unwed fathers entitled to due process
    hearings to determine fitness as parent before
    children can be made wards of state
  • Also established what Constitution requires in
    way of due process for anyone
  • Before government at any level can deprive person
    of rights or property, person must at least be
    given formal notice, hearing to meet requirements
    of procedural fairness

(No Transcript)
Procedural Due Process and Juvenile Justice
By 1899 states recognized that juvenile offenders
should be treated differently from adult
criminals. Unfortunately, juvenile proceedings
were often informal and did not include due
process protections. In the 1967 landmark case In
re Gault, the Court extended many of the due
process requirements of adult proceedings to the
juvenile justice system.
  • Background to Gault
  • 15-year-old Gerald Gault taken into custody
    following complaint by Arizona woman who believed
    him to be person who made lewd phone call to her
  • Mother went to juvenile center, learned son would
    have juvenile court hearing next afternoonnever
    told what he was charged with
  • Neither Gault nor parents advised he could have
    attorney judge took no testimony from family no
    one testified under oath no record of
    proceedings accuser not required to appear,
    denying right to confront, cross-examine
  • Judge found Gerald guilty, sentenced him to state
    industrial school till 21

Procedural Due Process and Juvenile Justice
  • The Gault Decision
  • Arizona lawGault had no right to appeal
    conviction, punishment
  • Appealed to Supreme Court claiming minors should
    have same due process rights as adults
  • Court agreed neither 14th Amendment nor Bill of
    Rights for adults alone
  • Condition of being a boy does not justify
    kangaroo court
  • Gaults Impact
  • Gault gave juveniles most of same due process
    rights as adults
  • Rights to know what they are charged with, to
    counsel, to confront witnesses
  • Did not give all same rightsin most states
    juveniles still do not have right to trial by jury

1984, Schull v. Martin Court ruled that due
process for juveniles does not include the right
to be released from custody while they are
awaiting trial.
(No Transcript)
Summarizing What is procedural due process?
Answer(s) TBA in class.
SimulationTerrorists and Due Process
Should suspected terrorists receive due process
of law? The Fifth and Fourteenth Amendments
guarantee that Americans may not be denied life,
liberty, or property without due process of law.
However, the Supreme Court has applied this
protection in some very different ways. Use what
you have learned in Section 3 to complete this
simulation about a fictional due process case
being argued in the Supreme Court.
Simulation (contd.)
  • Roles
  • Chief justice of the United States
  • Associate justices
  • Attorneys for the defendant
  • Attorneys for the plaintiff
  • Attorneys for the American Center for Civil
    Justice (ACCJ)
  • Attorneys for Terrorism Victims and Survivors for
    Justice (TVSJ)

Simulation (contd.)
  • The Situation
  • Number of people suspected of plotting, having
    committed terrorist acts against United States
    imprisoned at U.S. military base in another
  • Have not been charged with a crime
  • Have not had hearing, been brought to trial
  • Have not been allowed to hire attorneys to
    represent them
  • Several imprisoned for more than two years
  • Two are U.S. citizens, others citizens of other
  • Civil rights group has appealed to Supreme Court
    on detainees behalf, asking prisoners receive
    due process

Simulation (contd.)
  • Oral Arguments
  • Attorneys for both plaintiff, defendant will
    present oral arguments to Supreme Court
  • Plaintiffs argument presented first, followed by
  • Justices may interrupt each argument to ask
  • After each side has made argument, Court will
    rule on question of what, if any, due process
    rights detainees may be entitled to
  • Court may order due process for all, some, or none

Simulation (contd.)
Debriefing Those who would give up essential
liberty to purchase a little temporary safety,
deserve neither Liberty nor Safety, is a quote
attributed to Benjamin Franklin. Use what you
have learned about due process to discuss the
trade-off between liberty and safety today.
Section 4 at a Glance
  • Federalism and the Supreme Court
  • Treaties and States Rights Learn about the
    relationship between federal law, such as
    treaties with other countries, and state laws.
  • Learn about the distribution of power between the
    federal and state governments.
  • Arguing a Federalism Case Use your knowledge to
    argue a Supreme Court case involving the commerce
    clause, states rights, and the Eleventh

(No Transcript)
Federalism and the Supreme Court
Reading Focus In Chapter 4 you read that
federalism is a system of government in which
power is divided between a central government and
regional governments. The Constitution gives the
national government power over some issues and
reserves to the state governments power over
other issues. The balance of power between the
national government and the states shifts from
time to time as a result of legislation and
Supreme Court decisions.
Treaties and States Rights
Hunting and fishing are typically regulated by
state governments. Should the federal government
have any power over state-regulated activities,
such as restricting the hunting of certain
animals within a states borders?
Treaties and States Rights (contd.)
  • Court Hears Missouri v. Holland
  • Feds argued Constitution gave president power to
    make treaties
  • Noted supremacy clause making federal laws,
    treaties the supreme law of the land
  • Missouri argued Bird Treaty Act unconstitutional
    intrusion into Missouris sovereignty, Congress
    should not be able to use treaty power to pass
    law that would be unconstitutional if passed
  • Hollands Impact
  • Court upheld lower court ruling that act was
  • Observed some matters require national action
  • Federal government can, under international
    treaty, regulate activities within states it
    might otherwise have no power to control
  • Migratory birds do not recognize borders, are no
    ones property

Holland clarified and expanded the limits of
federal power to conduct international relations.
Other cases since have continued to expand
authority over state laws when the nation is
dealing with international issues.
1. Should the hunting of migratory birds be
controlled by the states, which license hunters,
or by federal authorities? Explain your point of
2. Was the Migratory Bird Treaty Act a proper
expansion of federal power over the states? Why
or why not?
3. Could the federal government amend the
Constitution by making a treaty with another
country? Explain.
Expanding Federal Authority
  • Commerce Clause of Constitution
  • Congress has power to regulate commerce with
    foreign nations, the states, Indian tribes
  • Congresss use of clause, Supreme Courts
    interpretation of it, has significantly defined
    balance of power between national government,
    states, helped shape American life
  • Use of power
  • Congress has tried to use power to regulate
    commerce to end racial discrimination in United
  • 1964, Heart of Atlanta Motel v. United States
    Court upheld use of power, said federal
    government could force private businesses not to
    discriminate against African Americans
  • Said Heart of Atlanta Motel engaged in interstate
    commerce since 75 percent of guests were from out
    of state racial discrimination had disruptive
    effect on interstate commerce

Identifying the Main Idea What part of the
Constitution has had the greatest impact on
changing the Constitutional system of federalism?
Answer(s) TBA in class.
The Guns in School Case
  • 1992 Alfonso Lopez arrived at San Antonio high
    school carrying concealed handgun
  • School authorities received tip, confronted Lopez
  • Lopez admitted he had .38 caliber revolver, five
  • Lopez arrested, charged under Texas law with
    firearm possession on school premises
  • Next day state charge dropped when Lopez charged
    with violating federal Gun-Free School Zones law
  • Law makes it illegal for anyone to have firearm
    in school zone
  • Lopez convicted in federal court, sentenced to 6
    months in jail
  • 5th Circuit Court of Appeals reversed conviction
  • Federal authorities appealed to Supreme Court

  • The Arguments
  • Lopezs attorneys said having gun at school may
    be criminal offense, but federal law was
    unconstitutional exercise of Congresss power to
    regulate interstate commerce
  • Government argued guns in school zones could lead
    to violent crime, making people afraid to travel
    in the area fear of violent crime might
    interfere with students learning both could
    affect the economy
  • The Courts Ruling
  • 1995, United States v. Lopez Court ruled 54
    that Gun-Free School Zones Act unconstitutional
  • Possession of gun in local school zone not
    economic activity, would not affect any sort of
    interstate commerce
  • Lopez first case to limit Congresss use of
    commerce clause since 1930s
  • Court had duty to prevent federal government from
    further expanding powers to regulate conduct of a
    states citizens

(No Transcript)
The Medical Marijuana Case
  • Using marijuana illegal under federal law since
  • 1996 California voters approved marijuana use
    for medical purposes
  • Two Californians, Diane Monson and Angel Raich,
    used home-grown marijuana to treat chronic pain
  • Doctor said Raichs pain so severe, she could die
    without marijuana to relieve it
  • 2002 federal authorities seized and destroyed
    six marijuana plants grown by Monson
  • Monson, Raich sued federal government
  • Court of appeals ruled feds had no right to
    interfere with right to grow, use marijuana under
    California law
  • Government appealed decision to Supreme Court

The Arguments
  • Raich, Monson claimed federal law allowing
    seizure was violation of commerce clause because
    they were not engaged in interstate commerce
  • Said marijuana home grownseeds, soil, equipment
    all from state in which they lived therefore
    product was entirely of intrastate commerce
  • Claimed federal governments enforcement action
    was unconstitutional
  • Government based its argument on supremacy clause
  • Argued federal government does not recognize
    medical use of marijuana, Constitution makes
    federal law supreme over state law
  • Also argued use of home grown marijuana for
    medical purposes affected illegal trade in
    marijuana coming into California from other
    states, countries
  • Claimed this gave government right to regulate
    home grown marijuana

The Raich Decision
  • 2005, Supreme Court ruled 63 to uphold
    governments use of commerce clause to seize home
    grown marijuana plants
  • Court accepted governments argument that home
    grown medical marijuana affects interstate
  • Justice John Paul Stevenss majority opinion
    noted marijuana popular part of commerce,
    commerce clause applies whether commerce is legal
    or not
  • Said if Monson, Raich not growing own marijuana,
    would have to buy somewhere else which would
    ultimately have impact on the interstate commerce
    Congress can regulate
  • Justice Sandra Day OConnors dissenting opinion
    noted Federalism promotes innovation by
    allowinga single courageous state, if its
    citizens chooseto try novel social and
    economic experiments without risk to the rest of
    the country
  • Added that principles of federalism should
    protect Californias experiment from federal

(No Transcript)
Summarizing How did Justice OConnor think the
decision in Gonzales v. Raich affected federalism?
Answer(s) TBA in class.
SimulationArguing a Federalism Case
Should Native Americans be able to operate
casinos on reservations in states where such
gambling violates state law? Native American
groups are considered domestic dependent
nations within the United States. Each group has
the right to have its own government on a
reservation that operates mostly independently of
the laws of the state within which the
reservation is located. Using what you have
learned, complete this simulation involving
issues of federalism and having a casino on a
Simulation (contd.)
  • Roles
  • Chief justice
  • Associate justices
  • Attorneys for plaintiff, Native American Nation
  • Attorneys for defendant, the State
  • Attorneys for the National Native American
    Council, a Native American civil rights group
  • Attorneys for the American Association for Family
    Values, a group that opposes casinos and gambling

Simulation (contd.)
  • The Situation
  • Native American nation asked state to allow to
    open casino on reservation
  • State refused
  • Native Americans sued state in federal court
    under provisions of Indian Gaming Regulatory Act
    of 1988
  • State filed motion to dismiss case
  • Federal district court denied states motion,
    state appealed to circuit court of appeals
  • Court of appeals granted states motion,
    dismissed case
  • Native American nation appealed to Supreme Court
  • Appeals court considered, did not address,
    commerce clause issues

Simulation (contd.)
  • The Hearing
  • Attorneys for both plaintiff, defendant will
    present oral arguments to Supreme Court
  • Plaintiffs position presented first, followed by
  • Justices may interrupt each presentation to ask
  • After each side has made argument, Court will
    rule on plaintiffs request that it reverse court
    of appeals, allow suit in district court to

Simulation (contd.)
Debriefing While the Supreme Court is
deliberating its decision, write a one-page
opinion of your own, revealing how you would
decide the case if you were on the Court. After
the Courts decision is read, discuss with the
class and the justices any differences you see
between the decision and any separate opinions
the justices may have written and which opinion,
if either, you think is better reasoned.