Constitutional Law

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					Constitutional Law
• Most of the courts in the federal court system
  are constitutional courts; the exceptions—the
  Tax Court, the Court of International Trade, and
  the Claims Court—are legislative courts.
  Constitutional courts decide the constitutionality
  of federal, state, and local laws and regulations.
  The Supreme Court makes final decisions
  regarding constitutionality and is the highest
  court of appeals in the country. Although this
  court hears cases never tried before, the bulk of
  the work of the nine Supreme Court justices is
  made up of appeals from lower courts.
The Judicial Branch &
 The Supreme Court

  Checks and Balances
                     Article III
• The Judicial Branch was
  established by the Constitution
  to provide a final check on both
  the Legislative and Executive
• In any federal issue, the courts
  are the final interpreter of the
  Constitutionality of any law.
  The same applies to states
  and their constitutions.
The Finality of the Supreme
             • The Supreme Court is
               the Highest
               authority in the land.
             • They interpret the
               wording of the original
               document and all it‘s
Chief Justice John Roberts
John Paul Stevens
Samuel Alito
Antonin Scalia
Anthony Kennedy
Sonia Sotomayor
Clarence Thomas
Ruth Bader Ginsburg
Stephen Breyer
Principles of the US Constitution
• Separation of Powers -   • Each branch has it‘s
   – Ex‘s?                   own specific jobs
• Checks and Balances -
                           • Each branch
   – Ex‘s?
                             ―watches the other‖
• Popular Sovereignty -
   – Ex‘s?                 • The people rule
• Judicial Review –        • Supreme Court has
   – Ex‘s?                   the final say on
• Living Document –          constitutionality
   – Ex‘s?
                           • It can change
    Marbury v Madison (1803)
• Players:
  – John Adams – 2nd President – Midnight
     • William Marbury – one of the midnight
       appointments – District Judge
  – Thomas Jefferson – 3rd President
     • James Madison – Jefferson‘s Secretary of State
  – John Marshall – newly appointed (midnight)
    Chief Justice
                The Case
• Adams made several ―midnight‖
  appointments before leaving office
  – No congressional approval needed during
• One letter did not make it in time – carried
  by Marshall‘s brother-in-law
• Madison (Sec. of State) refused to accept
  the commission
                 At Issue
• Judiciary Act of 1789 – Section 13 – called
  for ―Writs of Mandamus‖
  – These writs allowed the Supreme Court to
    force officials to carry out duties.
  – Marbury petitioned the Supreme Court to
    ―force‖ Madison to accept the commission.
        Constitutional Question?
• 1. Was Marbury entitled to his commission?

• 2. Is the Judiciary Act of 1789, Section 13
               The Decision
• 4-0 (Marshall recused himself)

• 1. Yes – Marbury is entitled to his
• 2. No – Sec. 13 of the 1789 Judiciary Act
          is Unconstitutional.
     • Gives a power to the Supreme Court not intended
       in Constitution – need amendment to change the
       document. Upsets the separation of powers and
       checks and balances.
               The Outcome
• Marbury v Madison
  established the idea
  of Judicial Review
  – Implied power allowing
    Supreme Court to
    Constitutionality of
  – The court gave itself
    that power by denying
    a power.
  McCulloch v Maryland (1819)
• The players:
  –   1st National Bank
  –   2nd National Bank
  –   James McCulloch
  –   State of Maryland
• Federalists and Anti-federalists argued
  over the inception of the 1st National Bank.
• Federalists won a 20 year charter, which
  ran out in 1811
• War of 1812 – President Madison
  reincorporates a 2nd National Bank
• Anti-federalists, states and private banks
  argue over constitutionality of National
                   At Issue
• Maryland decides to ‗tax‘ the 2nd National
  – Protectionist tax policy
• McCulloch, a cashier at the Baltimore
  branch, refuses to pay
      Constitutional Question
• 1. Can a state tax the federal

• 2. Is a National Bank Constitutional?
• 7-0 unanimous decision

• 1. No – “the power to tax is the power to
     destroy‖ – Chief Justice John Marshall
        –   Supremacy clause - Article 6, Para. 2

• 2. Yes – Artilce I. Section 8, Paragraph 18
  – ―necessary and proper‖
     • Clause allows congress additional power to carry
       out the business of government
   Dred Scott v Sanford (1857)
• Players:
  – Dred Scott – slave
  – John Sanford – acting on behalf of owner who
    refused to grant Scott freedom
     • Dred Scott was owned by at least 3 different
  – Missouri Compromise of 1820
• Dred Scott was taken into
  ‗free‘ territory on several
  occasions by his owners.
• Scott had attempted
  several times to procure
  his freedom and freedom
  for his family citing that by
  passing into free territory,
  he was now a free man.
     Constitutional Question
• 1. Was Dred Scott a free man?

• 2. Is the Missouri Compromise
• Roger B. Taney – Chief Justice
• 7-2 decision
• 1. No – Scott is 3/5 of a person and therefore
  not entitled to citizenship, AND therefore cannot
  sue. Slaves are ―property‖: I.2.3
• 2. No – the assumption that ―property‖ can be
  taken away form a US citizen is against the 5th
  Amendment right to Due Process (life liberty and
    Plessy v Ferguson (1896)
• Players & background
  – Homer Plessy – 1/8 African American
  – John Ferguson – judge from Massachusetts,
    presided over Plessy‘s arrest and 1st case
  – Reconstruction/ Louisianna
  – Jim Crow Laws
  – 14th Amendment
      Constitutional Question
• Does separate seating violate the 14th
  amendment‘s promise of equal
                 The Decision
• 8-1 decision

• No – Separate IS
Brown v Board of Education,
       Topeka, KS
              • Players & background
                – Chief Justice Earl
                – Linda Brown, Oliver
                – Thurgood Marshall
                – Dr. Kenneth Clark
                – 1879 law permitting
                  segregation in schools
                – 7 blocks v 1 mile (still
                  6 blocks to bus stop)
Constitutional Question
            • Are separate
              educational facilities
              ―equal‖ according to
              the 14th Amendment?
• 9-0 unanimous decision

• NO – Separate is NOT equal – especially
  in education.
Things to consider
 • Impact of TV
 • Rosa Parks and the
   Montgomery Bus
 • MLK
 • Malcolm X
 • Little Rock, Ark.
Regents of the University of
California v. Bakke (1978)
              • Players & background
                – Allan Bakke, rejected
                  twice to med school
                – 16 ―qualified minority‖
                  seats reserved
                – Bakke‘s scores
                  exceeded all 16
                  petitioners, in BOTH
                – Reverse
                – Warren Burger - CJ
   The Constitutional Question
• Did the University of California violate the
  Fourteenth Amendment's equal protection
  clause, and the Civil Rights Act of 1964,
  by practicing an affirmative action policy
  that resulted in the repeated rejection of
  Bakke's application for admission to its
  medical school?
            The Decision
• 5-4, 4-5 (yes & no)

• The Court held that while affirmative action
  systems are constitutional, a quota system
  based on race is unconstitutional.
     Miranda v Arizona (1966)
• Players &
  – Ernesto Miranda
     • Career criminal
     • Rapes and kidnapping
  – Gave confession
     • Never requested
  – Attorney argued he did
    not know his rights
      Constitutional Question
• Does the accused need to be informed of
  his 5th and 6th amendment rights each time
  he is suspected?
     • 5th – self incrimination
     • 6th – trial and counsel rights
             The Decision
• 5-4 - - is that a STRONG opinion?

• Yes, each time a person is suspected of a
  crime, they need to be informed of their

• Any testimony given without this is
  inadmissable in court.
       The Miranda Warning
• Right to remain silent
• Anything you say can and will be used
  against you in court
• You have the right to an attorney
• If you cannot afford one, one will be
  provided for you
     Precedent setting cases
• Gideon v Wainwright (1963), that
  indigent criminal defendants had a right to
  be provided counsel at trial.

• Escobedo v. Illinois, (1964) criminal
  suspects have a right to counsel during
  police interrogations
Mapp v Ohio (1961)
         • Police raided the
           home of Dollree Mapp
           believing she was
           harboring a fugitive
           – No warrant
           – No fugitive found
           – Found pornographic
         • Mapp found guilty of
           possession of
           obscene material
     Constitutional Question
• Does the 4th amendment protection
  against unwarranted searches and
  seizures apply to the states?
            The Decision
• 8-1

• Yes. The 4th amendment applies to the
  states, particularly due to the 14th
  Amendment ―due process‖ clause.
U.S. v Nixon (1974)
          • Players & background
            –   Nixon
            –   Watergate Tapes
            –   C.J. Warren Burger
            –   Washington Post
                 • Bob Woodward
                 • Carl Bernstein
            – Deep throat
                 • William Mark Felt, Sr.
                     – FBI informant
      Constitutional Question
• Can the President keep the tapes secret
  as a matter of ―national security‖? In other
  words, is the President above the law?
             The Decision
• 8-0 Unanimous (Rehnquist recused

• No man, even the President, is above the
  – The supremacy clause says that the
    CONSTITUTION is the highest law in the
    land. NOT the President.
               NYT v US (1971)
• Players & Background
  –   NYT, Washington Post
  –   Nixon
  –   Executive authority
  –   Sec. of Defense, Robert
       • Commissioned 2.5 million
         word report on the real
         facts about Indochina.
      Constitutional Question
• Does the executive branch have the right
  to ―prior restraint‖?
             The Decision
• 6-3 NO
• Freedom of speech is guaranteed
  – unless government can show ―grave and
    irreparable‖ danger.
Texas v Johnson (1989)
           • Players & background
             – Greg Johnson (&
               demonstrators @ the
               RNC in TX)
             – Protesting Reagan‘s
               policies & Dallas-
               based corporations
             – American flag
             – Fire
             – Texas statute
                • 1 yr prison, $2k fine
      Constitutional Question
• Is flag burning a protected form of Free
              The Decision
• 6-3 - yes

• Flag burning is a protected form of free
  speech as per Amendment 1.
     Sheppard v Maxwell 1966
• Sam Sheppard found
  guilty of wife‘s murder
• Appealed conviction
  based on ‗unfair trial‘
   – Wide spread news
     reports ‗tainted‘ jury
• Question:
   – Freedom of the press
     v. right to fair trial
• 8-1 Sheppard did not receive a fair trial
  – Should have limited jury access or changed
  – Allowed fro courts to issue ‗gag rules‘ so
    press does not convey EVERYTHING
Weeks v. US 1914
        • Federal agents went
          into Fremont week‘s
          home (was running
          illegal lottery)
        • Was evidence
          obtained illegally?
        • Unanimous support of
          Shenck v US 1919
• WWI - - Charles
  Schenk led an anti-
  war protest
• Violated 1917
  Espionage Act
• Free Speech?
• 9-0, OK to curb
  speech when there is
  ―clear and present
Furman v Georgia (1972)
            • Players and
              – William Furman
                 • Burglarizing a house
                 • Testified that while
                   attempting to escape,
                   tripped and accidentally
                   shot one of the
              – Lawyers argued that
                the death penalty was
                inconsistent and
      Constitutional Question
• Does the imposition and carrying out of
  the death penalty constitute cruel and
  unusual punishment?
             The Decision
• 5-4 yes

• Resulted in a 4 year moratorium on the
  death penalty
  – All death row inmates sentences were
    commuted to life.
Gregg v Georgia (1976)
           • Troy Gregg
             – Murder and robbery of
               2 men
             – Troy and two other
               men had been hitch-
      Constitutional Question
• Is the imposition of the death penalty
  prohibited by the eighth amendment?
              The Decision
• No - 7-2
• Death penalty does not violate the 8th
  amendment if:
  – Trial and sentencing are conducted
  – Specific findings as to severity of crime and
    nature of the defendant are considered
  – Compare each capital sentence
    circumstances with one another
Stanford v Kentucky (1989)
             • Players & background
               – Kevin Stanford
                  • 17 at time of crime
                      – Murder, sodomy,
                        robbery and receiving
                        stolen property
               – Barbel Poore – victim,
                 gas station attendant
                  • Shot 2x at point blank
      Constitutional Question
• Does the imposition of the death sentence
  on convicted capital offenders below the
  age of 18 years old, violate the Eighth
  Amendment's protection against cruel and
  unusual punishment?
            The Decision
• 5-4 No

• Execution of minors is not cruel and
  unusual as society‘s standards of decency
Roper v Simmons (2005)
           • Players and
             – 17 year old Chris
             – Charles Benjamin &
               John Tessmer
             – Shirley Crook –
               murdered / drowned
             – Premeditation
             – History of physical and
               mental abuse
      Constitutional Question
• Is the execution of a person who was a
  minor at the time the crime was committed
  considered cruel and unusual punishment
  granted under the 8th and 14th
             The Decision
• 5-4 NO
• Standards of decency hold that executing
  minors is ‗cruel and unusual‘.
• Decision outlawed the death penalty
  against minors.
  – John Lee Malvo
      Atkins v Virginia (2002)
• Daryl Atkins (59 IQ)
   – William Jones
• Eric Nesbitt - victim
• $60 found in wallet,
  not enough
   – ATM (camera)
   – Taken to secluded
     location and shot 8
      Constitutional Question
• Is a Virginia law that allows for the
  execution of mentally retarded individuals
  unconstitutional under the eighth
  amendment protection against cruel and
  unusual punishment?
            The Decision
• 7-2 Yes

• To execute the mentally retarded does
  violate the 8th amendment.
U.S. v Lopez (1995)
          • Alfonso Lopez Jr.
            caught carrying a gun
            and cartridges near a
            high school in TX.
          • Charged with violating
            the Gun Free School
            Zones Act of 1990
            – Congress gave itself
              the right under the
              Commerce Clause
              (Art I, Sec 8, p 3)
      Constitutional Question
• Was the Gun Free School Zones Act of
  1990 in violation of Article I, section 8,
  paragraph 3: the commerce clause?
             The Decision
• 5-4

• Yes, The law in unconstitutional.
  Possession of a gun near a school is not
  an economic activity that has a substantial
  effect on interstate commerce
  – Significance of 10th Amendment, why?
        Engle v Vitale (1962)
• ―Almighty God, we       • The Board of Regents
  acknowledge our           of New York State
  dependence upon           authorized a short
  Thee, and beg Thy         prayer to be read at
  blessings upon us,        the start of each
  our teachers, and our     school day
      Constitutional Question
• Does the reading of a nondenominational
  prayer at the start of the school day violate
  the "establishment of religion" clause of
  the First Amendment?
             The Decision
• 6-1 YES
• It is unconstitutional.
• New York officially approved religion.
  – Separation between church and state
Gomillion v Lightfoot (1960)
              • Alabama legislature re-
                drew the electoral district,
                replacing what had been
                a region with a square
                shape with a twenty-eight
                sided figure. The effect of
                the new district was to
                exclude essentially all
                blacks from the city limits
                and place them in a
                district where no whites
      Constitutional Question
• Did the redrawing of Tuskegee's electoral
  district boundaries violate the Fifteenth
  Amendment of the Constitution which
  prevents the United States or any
  individual state from denying a citizen the
  right to vote on account of race, color, or
  previous condition of servitude?
              The Decision
• 9-0 YES

• Court held that Act 140 of the Alabama
  legislature violated the Fifteenth
• It was clear to the Court that the irregularly
  shaped district was drawn with only one
  purpose in mind, namely, to deprive blacks
  of political power.
Griswold v Connecticut (1965)
• Estelle Griswold brought
  suit after she, several
  clients, and other workers
  at the clinic were arrested
  under a Connecticut law
  that criminalized the
  provision of counseling,
  and other medical
  treatment, to married
  persons for purposes of
  preventing conception.
      Constitutional Question
• Does the Constitution protect the right of
  marital privacy against state restrictions on
  a couple's ability to be counseled in the
  use of contraceptives?
                The Decision
• 7-2 YES
• Though the Constitution does not explicitly
  protect a general right to privacy, the various
  guarantees within the Bill of Rights create
  penumbras, or zones, that establish a right to
  privacy. Together, the First, Third, Fourth, and
  Ninth Amendments, create a new constitutional
  right, the right to privacy in marital relations. The
  Connecticut statute conflicts with the exercise of
  this right and is therefore null and void.
Roe v Wade (1973)
         • Norma McCorvey
           wished to terminate
           her pregnancy, but
           TX law forbid the
           procedure except if
           the mother‘s life was
           at stake.
     Constitutional Question
• Does the Constitution embrace a woman's
  right to terminate her pregnancy by
             The Decision
• 7-2 YES
• The Court held that a woman's right to an
  abortion fell within the right to privacy
  (recognized in Griswold v. Connecticut)
  protected by the Fourteenth Amendment.
Casey v Planned Parenthood of
   S. Chester County (1992)
               • PA Abortion Control
                 Act of 1982 required
                 spousal notification
                 and parental
      Constitutional Question
• Can a state require women who want an
  abortion to obtain informed consent, wait
  24 hours, and, if minors, obtain parental
  consent, without violating their right to
  abortions as guaranteed by Roe v. Wade?
              The Decision
• (Bitter) 5-4 decision
• Struck down the spousal notification as an
  undue burden
• Upheld the 24 hour waiting period,
  informed consent, and parental consent
  – Set the standard for the country
  – **Ended ―abortion on demand‖
   Gonzales v Carhart (2007)
• Decision:
  – A 2003 law banning one type of Partial Birth
    abortions IS constitutional
  – 5-4 decision
  – Originally struck down because it did not
    include an exception in case a mother's life
    was at stake
    • Court believed that the law was written to ban the
      ‗intact‘ D & E
N.J. v T.L.O. (1983)
          • 2 girls accused of
            smoking in school
          • Principal searches purses
            and locker
             – Found drugs and
          • Girls suspended

          • Q: Did the search violate
            the 4th Amendment?
              The Decision
• 6-3 No

• The search :
  – Had probable cause
  – Was reasonable
  – Performed ‗in loco parentis‘
Scott v Harris (2007)
           • Victor Harris -19- left a
             quadriplegic after a high
             speed police chase
              – Driving erratically, over 100
                miles/ hr with suspended
              – Refused to pull over for
           • Police use ―PIT
             maneuver ―-- precision
             intervention technique
           • video clip
      Constitutional Question
• 1. Are high speed police chases

• 2. Can the police be sued by the suspect?
            The Decision
• 8-1

• Police chases ARE constitutional, AND
  suspects may NOT sue
  – ―Reasonable force‖ to protect community.
Moot Court
•   Moot Court Outline, Rubric & Cases
•   Each debate will follow this format:
•   2 sides: 1 pro (for), 1 con (against)
•   A coin flip decides who goes first. The winner is Team A.
•   Teacher introduces the case and the participants.
•    1 minute introduction, summary of your argument, start with
•   Team A
•   Arguments & Rebuttal
•   Team A starts and has 3 minutes to present their most
•   convincing argument as to why the court should rule in their favor.
•         When finished, Team B has 1 minute to rebut (challenge
•   any point (s) made by Team A.
•                      Team B now has 3 minutes to argue their point, then Team
•   has a 1 minute rebuttal
•   Closing Arguments
•                   Team A has 1 last chance to win in 1 remaining minute.
•                   Team B gets the same.
• Rubric: What am I looking for? Each area is
  worth 4 / 20 points (100 point project)
• Format: Did you follow the format? Meet time
  requirements? Provide an outline of
• your side‘s argument / points?
• Class Participation: Attendance? On-task in
  class? Justice role?
• Cooperation: Offer ideas? Do your fair share?
• Logic: Effective ‗if / then‘ argument showing
  constitutional tie-in and precedent?
• Presentation: Eye contact? Convincing? Good
• Case Summary
• 1. Is the placing of a GPS device on a suspect‘s car without a
  warrant constitutional?

• 2. Is the use of torture during interrogation of ‗enemy combatants‘
  (ie: terrorists) constitutional?

• 3. Is an amendment to ban gay marriage constitutional?

• 4. Is a law that states if a pregnant woman is killed, the charges
  against the perpetrator are doubled - - for both the woman, and her
  fetus, constitutional?

• 5. Is the current system of differing state by state procedures and
  regulations regarding the death penalty constitutional?

• 6. Is an amendment to allow for presidential line item vetos
• Notes:
• *You will need to sign up for a date to argue.
•     Attendance that day is a must. Failure to
  show on the assigned date results in a
• 50% grade reduction for that person.
•     All other members are expected to continue
  without absent member.
• *Do not forget to turn in an outline of your team‘s
  argument / points by _______________.
• *Decide as a whole team what the constitutional
  question is before you start outlining your case.
Deck v Missouri (2005)
           • Carmen Deck‘s was
             convicted of murder

             – The Long‘s gave him
               everything he asked
           • At sentencing phase,
             he was shackled with
             leg irons, hand cuffs
             and a belly chain
      Constitutional question
• Does shackling a convicted offender
  during the penalty phase of a capital case
  violate the due process clauses of the 5th
  and 14th Amendments, and the 6th
  amendment right to a fair trial?
               The Decision
• 7-2 YES

• Constitution forbids the use of visible
  shackles during both a capital trial‘s guilt
  and sentencing phases
  – Unless justified by essential state interests
    Board of Education v Earls
• School district
  required all students
  in middle and high
  school who wish to
  participate in extra-
  curriculars to submit
  to a drug test
• 2 parents brought suit
  – illegal search and
      Constitutional Question
• Is the Student Activities Drug Testing
  Policy consistent with the Fourth
                 The Decision
• 5-4 YES
• The policy reasonably serves the School
  District's interest in detecting and preventing
  drug use among its students
   – In loco parentis
• extracurricular activities diminished the
  expectation of privacy
• obtaining urine samples and maintaining test
  results was minimally intrusive on the students'
  limited privacy interest
           Kyllo v US (2001)
• Federal agents
  suspect Kyllo of
  growing marijuana
• Use a thermal
  imaging device to
  scan his triplex
• Scan results taken to
  judge to procure
  warrant – Kyllo
      Constitutional Question
• Does the use of a thermal-imaging device
  to detect relative amounts of heat
  emanating from a private home constitute
  an unconstitutional search in violation of
  the Fourth Amendment?
              The Decision
• 5-4 YES

• The Government used a device that is not
  in general public use, to explore details of
  the home that would previously have been
  unknowable without physical intrusion, the
  surveillance is a 'search' and is
  presumptively unreasonable without a
Hazelwood v Kuhlmeier (1988)
              • Players & background
                 – School newspaper
                 – Mr. Emerson, Faculty
                 – Mr. Reynolds, Principal
                 – Articles on pregnancy and
                 – Censorship
                    • Articles pulled instead of
                      edited (YEAR END
                 – 1st amendment
                 – -CJ – William Rehnquist
      Constitutional Question
• Did the principal's deletion of the articles
  violate the students' rights under the First
               The Decision
• No. 5-3
• First Amendment did not require schools to
  affirmatively promote particular types of student
• Schools must be able to set high standards for
  student speech
• schools retained the right to refuse to sponsor
  speech that was "inconsistent with 'the shared
  values of a civilized social order.'"
• actions were "reasonably related to legitimate
  pedagogical concerns."
Helling v McKinney (1993)
             • William McKinney
               – Prisoner
             • Cell mate smoked 5
               packs of
             • Officials were
             • 8th Amendment
      Constitutional Question
• May an inmate sue to prove that his Eighth
  Amendment right to be free from cruel and
  unusual punishment has been violated by
  prison officials who act with "deliberate
  indifference" to the future health risks
  associated with second-hand smoke?
             The Decision
• 7-2 YES

• Supreme Court held that McKinney's suit
  stated a reasonable claim that, if proven,
  could be grounds for relief under the
  Eighth Amendment prohibition of cruel and
  unusual punishment
   Georgia v Randolph (2006)
• Scott Randolph
  arrested for cocaine
  possession in home
  – No warrant
  – Wife consented to
  – He did not
      Constitutional Question
• Can police search a home when one
  physically present resident consents and
  the other physically present resident
             The Decision
• 5-3 NO

• When two co-occupants are present and
  one consents to a search while the other
  refuses, the search is not constitutional
• Without some very good ―reason‖, no
  sensible person would go inside under
  those conditions