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Section 1: The First Amendment: Your Freedom of Expression Section 2: The Fourth Amendment: Your Right to Be Secure Section 3: Due Process and the Fourteenth Amendment Section 4: Federalism and the Supreme Court. Chapter 13: Supreme Court Cases. Section 1 at a Glance.

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Section 1:The First Amendment: Your Freedom of Expression

Section 2:The Fourth Amendment: Your Right to Be Secure

Section 3:Due Process and the Fourteenth Amendment

Section 4:Federalism and the Supreme Court

Chapter 13: Supreme Court Cases


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 Play’s 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 subject.

The First Amendment: Your Freedom of Expression

Reading Focus

Your freedom of expression—the 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 mistakes—is the cornerstone of our democracy. Through its power to interpret the Constitution, the Supreme Court can expand—or limit—your rights.


1965: John Tinker and others protested Vietnam War by wearing black armbands at public school

  • School board adopted policy banning wearing of armbands
  • Several violated policy, wore armbands, and were suspended
  • Parents sued school district claiming students’ First Amendment right to free expression had been violated
  • U.S. district court ruled in favor of school; appeals court upheld
  • Case appealed directly to U.S. Supreme Court

The Black Armband Case

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 (cont’d.)

  • The Supreme Court Decision
  • Tinkers and others argued school’s ban on armbands violated right to free speech under First, Fourteenth Amendments—armbands symbolic speech
  • 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 court’s ruling
  • Constitutional rights not shed “at schoolhouse gate”
  • 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 Constitution’s protection of free expression

Students’ Right of Expression (cont’d.)

  • 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 purpose
  • Supreme Court has limited student expression on and off campus in recent years


1.Are protests like Tinker’s 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 not?

3.Is the Tinker test an adequate way to handle issues related to students’ freedom of expression? Why or why not?


School Prayer

The Establishment Clause

  • Some of the greatest controversy
  • Court has banned public enforced school prayer, not private, voluntary school prayer
  • Private religious groups allowed
  • Employees may not take part
  • Jefferson called for “wall of separation” between church, state
  • Supreme Court has tried to maintain such a wall
  • Disagreement exists over how high wall should be, or if it should exist

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.


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 evolution
  • 1987: Edwards v. Aguillard
    • Voided Louisiana law requiring religious view known as creation science to be taught alongside evolution

Freedom of Religion (cont’d.)

  • 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 actions
  • 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 polygamy
    • 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 Carolina’s denial of unemployment benefits to woman fired for refusing to work on Saturdays, her day of worship
  • Society’s gain did not outweigh person’s freedom to follow beliefs
  • Goldman v. Weinberger, 1986
  • Upheld Air Force’s ban on wearing nonmilitary apparel
  • Jewish man could not wear yarmulke while on duty
  • Based on military need to foster unity and group spirit
  • 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


How did the Court’s position on religious expression in Sherbert v. Vernerdiffer from its position in the Smith case?

Answer(s):In Sherbert v. Verner the Court extended freedom of religious expression rights; in the Smith case the Court limited religious rights.


Student Speech

  • Court has ruled schools can regulate time, place, content of student expression
  • Political speech—fewest limits
  • Vulgar, obscene speech—not allowed in school
  • Speech codes—many schools have adopted limits on expression
  • Cyberspeech—generally same protection as printed material

Protected and Unprotected Speech

  • Speech that has little or no social value is generally not protected
  • 1942: Chaplinsky v. New Hampshire, some classes of expression not protected—
  • — Fighting words
  • — Defamatory speech
  • — Lewd and profane speech

Freedom of Speech

“Congress shall make no law…abridging 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?



What limits are placed on student speech?

Answer(s):Students are prohibited from speech that disrupts the school’s learning environment and that violates the boundaries of socially accepted behavior.


Right of assembly—you have right to join, form groups, gather for any peaceful, lawful purpose

  • Must be peaceful
  • May not gather on private property without owner’s consent
  • Government may reasonably regulate time, place, behavior
  • 1927: Whitney v. California upheld conviction of woman for membership in Communist Labor Party
  • Such limits allow authorities to arrest suspected terrorists, members of armed groups that pose threat to society

Freedom of Petition and Assembly

  • First Amendment recognizes, protects right to petition government for redress of grievances—to remove the cause of a complaint and make things right
  • 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

Drawing Conclusions

How do the freedoms of petition and assembly support a republican form of government?

Answer(s):Those freedoms increase citizen participation in government.


Equal Access Act of 1984

Illegal Activity

  • Prohibits schools from discriminating against clubs because of religious or philosophical viewpoint
  • Students may distribute religious and political literature, but school officials may regulate activity
  • Schools do not have to allow organizations that preach hate or violence, engage in illegal activity
  • Cannot restrict students from forming clubs just because clubs might be controversial

Freedom of Petition and Assembly (cont’d.)

  • 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):clubs that preach hate or violence, or that engage in illegal activity


SimulationThe Play’s 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 (cont’d.)

  • 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 (ASA)
  • Drama club members
  • School principal
  • School newspaper editor
  • Other witnesses

Simulation (cont’d.)

  • 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 denied
  • 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 suspended
  • School newspaper prepared story on controversy
  • School officials refused to allow story to be published
  • Students filed lawsuit in federal court

Simulation (cont’d.)

  • The Trial
  • Attorneys for plaintiffs, defendants will present case
  • Plaintiff case presented first, followed by defense
  • Each side calls witnesses, including expert testimony
  • Organizations present arguments at conclusion of appropriate side’s case
  • Jury renders verdict for plaintiffs or defendants after each side’s case heard

Simulation (cont’d.)


After the jury has reached its verdict, discuss the jury’s 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 seizures—in 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.


Caballes Pulled Over

A Canine Alert

  • 1998: Roy Caballes clocked by state trooper driving 71 mph in a 65 mph zone
  • Caballes pulled over for speeding
  • Warrant check revealed no outstanding warrants, but that Caballes had been arrested twice for selling drugs
  • Second trooper with drug-sniffing dog arrived at scene
  • Dog walked around Caballes’s car, barked at trunk
  • Troopers opened trunk, found large quantity of marijuana
  • Caballes arrested for drug trafficking
  • Lawyer claimed drugs found as product of illegal search
  • Caballes convicted, sentenced to 12 years in prison

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 (cont’d.)

  • The Court Hears Illinois v. Caballes
  • 2003, Illinois Supreme Court reversed Caballes’s 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 something”
    • 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
    • Caballes’s attorney argued sniff was search, like scanner revealed something hidden from view; police had no reasonable suspicion to search car

The Caballes Decision

  • 2005, Illinois v. Caballes: 6–2 decision—Court reversed Illinois Supreme Court, upheld Caballes’s 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 interests
  • Court agreed with state’s 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, dog’s limited ability
  • Dog’s 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 dog’s 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.




  • Definition of search—any action by government to find evidence of criminal activity—very broad
  • Includes searching property, listening to phone conversations, stopping suspicious-looking persons and frisking for weapons
  • Seizure occurs when authorities keep something—an object, person
  • Police might seize item from home as evidence in a murder
  • Might take drugs or weapon from person stopped and frisked

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.


Unreasonable Searches

Warrantless Searches

  • 4th Amendment bans unreasonable search and seizure
  • What is reasonable?
  • 1967: Katz v. United States, searchers must respect person’s right to privacy
  • Search warrant needed to look inside something
  • Must state what is being searched, what authorities are looking for
  • Some instances where warrant not required
  • Plain view doctrine: if object is in plain view, law assumes owner does not consider it private
  • Example—if police have warrant to search home for illegal drugs and drug paraphernalia is in plain view, it can be seized even though items not listed on warrant

Probable Cause and Warrants

To obtain a warrant—a court order to search for something or seize someone—there must be probable cause to believe the search will produce evidence of a crime, or that the person seized committed a crime.



How are search and seizure related?

Answer(s):Authorities conduct searches for evidence of illegal activity, and if they find such evidence, they seize it for evidence.


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 is
  • Not as much privacy expected in coffee shop as in home
  • 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 people’s 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 circumstances
  • 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 weapons
  • Neither warrant nor probable cause needed for what now is called Terry stop
  • Public safety outweighs individual’s privacy right

Intrusive Searches

  • Degree to which authorities may go in searching person’s body depends on situation
  • Three questions considered in deciding if search reasonable
    • What is legal status of person being searched
    • How invasive is search
    • Does search serve safety, security need for society—this 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 cause
  • 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 nation’s school-children is at least as important as…deterring 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 reasonable
    • 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 circumstances
  • After T.L.O., most student search cases decided at state level
  • Any search by police officers still requires warrant

The 4th Amendment Since 9/11


  • USA PATRIOT Act greatly relaxed privacy protections, controls on searches, seizures
  • Government allowed to search variety of information—phone company records, Internet service providers, libraries, bookstores
  • National Security Letter—issued by FBI and others; authorizes search without warrant
  • PATRIOT Act also contains gag order—recipient of NSL prohibited from disclosing that letter was ever issued

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

Wireless “Searches”

  • Many of today’s 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 communications
  • PATRIOT Act—some 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 AT&T 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


Why are National Security Letters controversial?

Answer(s):possible answer—Probable cause is not needed to obtain them and they come with a gag order.


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 (cont’d.)

  • Roles
  • Chief justice of the United States
  • Eight associate justices
  • Plaintiff’s attorneys
  • Defendant’s attorneys
  • Attorneys from the National Association of Law Enforcement Members (NALEM)
  • Attorneys from the Foundation for Fourth Amendment Freedoms (FFAF)

Simulation (cont’d.)

  • The Situation
  • Police discover small amount of illegal drugs on 18-year-old in pat-down search during traffic stop
  • 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 (cont’d.)

  • The Hearing
  • Attorneys for both plaintiff, defendant will present oral arguments to Court
  • Plaintiff’s case presented first, followed by defendant’s
  • Justices may interrupt each argument to ask questions
  • After each side has made argument, Court will rule, either upholding or reversing state supreme court’s ruling overturning conviction

Simulation (cont’d.)


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 Court’s decision is read, discuss whether you agree or disagree with the Court’s opinion or opinions.


Section 3 at a Glance

  • Due Process and the Fourteenth Amendment
  • Due Process and Public SchoolsLearn 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 people’s rights.
  • Terrorists and Due Process Use your knowledge to argue a case involving due process issues before the Supreme Court.

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.


The School Suspension Case

  • 1971: Columbus, Ohio, school officials suspend number of students for up to 10 days for student misconduct
  • Dwight Lopez asserted he was innocent bystander
  • Claimed due process rights denied because he was suspended without hearing
  • District court ruled suspensions unconstitutional; Lopez, others denied due process
  • Court said school should have given students notice of suspension, held hearing
  • School system appealed to Supreme Court

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 (cont’d.)

  • 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 right
  • The Supreme Court’s Decision
  • 1975: in 5–4 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 right
  • 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 process…nor deny any person…equal 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 process—laws, process, and procedures of applying them must be fair
  • Equal protection—each person in same, similar circumstances stands before law equally
  • Procedural due process—certain procedures must be followed in carrying out, enforcing law
  • Substantive due process—if way laws carried out are fair, then laws themselves must be fair
  • People have natural rights not listed in Constitution
  • To be fair a law cannot violate people’s natural rights


Explain how procedural due process and substantive due process ensure that a person will have a fair trial.

Answer(s):possible answer—Procedural due process ensures that proper trial procedures will be followed, and substantive due process ensures that the interpretation of the laws during the trial will be fair.


Protecting Property Rights

The Bakeshop Case

  • Court first used doctrine of substantive due process to define, protect property rights, other economic rights
  • 1905, Lochner v. New York, one of most famous examples—also known as the Bakeshop Case
  • Bakery owner arrested in violation of Bakeshop Act; claimed deprived of property rights—to negotiate employment contract—without due process
  • State argued it was empowered to protect well-being of citizens

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 stated—unenumerated 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

The Decision and the Dissent

  • 5–4 decision, justices agreed with bakeshop owners
    • Overturned conviction, ruled Bakeshop Act unconstitutional
    • When considering if exercise of state’s police power to safeguard public health constitutional, Court must ask if regulation reasonable and necessary, or unreasonable, unnecessary, arbitrary
    • Court did not believe long hours in bakery unhealthy
    • Law unreasonable interference with rights of individuals to make contracts regarding labor
  • Strong dissents
    • Justices Harland, Holmes argued Court’s majority should have respected legislature’s judgment instead of own point of view
    • “A constitution is not intended to embody a particular economic theory...”

Lochner’s 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 reason—rational basis—for passing law
  • When Court called upon to review law, rational basis test the least strict standard it can apply

The practical result of the Court’s 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.


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 Constitution.

  • 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

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 Court—could not end treatment without evidence of what patient wanted
  • The Effect of Cruzan
    • Case established person’s 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 so
    • Cruzan’s 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 Court’s theory and use of substantive due process changed?

Answer(s):The Court shifted its use of substantive due process from property rights to personal rights.


Goldberg v. Kelly (1970)

  • John Kelly, others, challenged constitutionality of procedures for termination of federal financial aid
  • Court ruled Kelly entitled to full hearing before benefits terminated
  • Decision changed way all government benefits are administered
  • Aid payments are form of property

Procedural Due Process and Property Rights

  • Most attention focuses on life, liberty issues as due process applies to arrest, prosecution of persons accused of crimes
  • Issues typically involve depriving people of personal property, land
  • 1970s: concept expanded to include other benefits, education, statuses

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 mother—not father—of child born to unmarried couple
  • Peter Stanley not married to Joan Stanley, mother of their three children
  • State removed children from Stanleys’ home when Joan died because according to state’s definition, Peter Stanley was not parent
  • Peter Stanley sued state to regain custody of children
  • 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

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 afternoon—never 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 law—Gault 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”
  • Gault’sImpact
  • 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 rights—in 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.



What is procedural due process?

Answer(s):possible answer—the requirement that government must follow certain procedures before depriving citizens of life, liberty, and property


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 (cont’d.)

  • 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 (cont’d.)

  • The Situation
  • Number of people suspected of plotting, having committed terrorist acts against United States imprisoned at U.S. military base in another country
  • 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 countries
  • Civil rights group has appealed to Supreme Court on detainees’ behalf, asking prisoners receive due process

Simulation (cont’d.)

  • Oral Arguments
  • Attorneys for both plaintiff, defendant will present oral arguments to Supreme Court
  • Plaintiff’s argument presented first, followed by defendant’s
  • Justices may interrupt each argument to ask questions
  • 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 (cont’d.)


“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 Amendment.

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.


Wild animals considered property of state in which they lived

  • Wild animals, especially birds, move across boundaries freely
  • Federal government tried to use this to protect migratory birds
  • Courts struck down federal bird hunting regulations as unconstitutional
  • 1916: treaty to protect birds migrating between U.S., Canada
  • Congress passed Migratory Bird Treaty Act to prohibit killing, capturing birds covered by treaty
  • Missouri tried to prevent federal game warden from enforcing act as unconstitutional exercise of federal power

Protecting Migratory Birds

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 state’s borders?


Treaties and States’ Rights (cont’d.)

  • 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 Missouri’s sovereignty, Congress should not be able to use treaty power to pass law that would be unconstitutional if passed directly
  • Holland’s Impact
  • Court upheld lower court ruling that act was constitutional
  • 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 one’s 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 view.

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
    • Congress’s use of clause, Supreme Court’s 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 States
    • 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):the commerce clause (Article I, Section 8, Clause 3)


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 bullets
  • 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

  • Lopez’s attorneys said having gun at school may be criminal offense, but federal law was unconstitutional exercise of Congress’s 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 Court’s Ruling
  • 1995, United States v. Lopez: Court ruled 5–4 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 Congress’s use of commerce clause since 1930s
  • Court had duty to prevent federal government from further expanding powers to regulate conduct of a state’s citizens

The Medical Marijuana Case

  • Using marijuana illegal under federal law since 1937
  • 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 Raich’s 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 grown—seeds, soil, equipment all from state in which they lived; therefore product was entirely of intrastate commerce
  • Claimed federal government’s 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 6–3 to uphold government’s use of commerce clause to seize home grown marijuana plants
  • Court accepted government’s argument that home grown medical marijuana affects interstate commerce
  • Justice John Paul Stevens’s 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 O’Connor’s dissenting opinion noted “Federalism promotes innovation by allowing…a single courageous state, if its citizens choose…[to] try novel social and economic experiments without risk to the rest of the country…”
  • Added that principles of federalism should protect California’s experiment from federal regulation


How did Justice O’Connor think the decision in Gonzales v. Raich affected federalism?

Answer(s):Justice O’Connor believed it gave the federal government too much power.


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 reservation.


Simulation (cont’d.)

  • 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 (cont’d.)

  • 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 state’s motion, state appealed to circuit court of appeals
  • Court of appeals granted state’s motion, dismissed case
  • Native American nation appealed to Supreme Court
  • Appeals court considered, did not address, commerce clause issues

Simulation (cont’d.)

  • The Hearing
  • Attorneys for both plaintiff, defendant will present oral arguments to Supreme Court
  • Plaintiff’s position presented first, followed by defendant’s
  • Justices may interrupt each presentation to ask questions
  • After each side has made argument, Court will rule on plaintiff’s request that it reverse court of appeals, allow suit in district court to proceed

Simulation (cont’d.)


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 Court’s 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.