Suggested Additional Assignments
Interview: Civil Rights
Students should interview three people to determine their views about two issues: flag burning and
boy-girl wrestling. One person should be over 50 years old, one person should have been born and raised
in a foreign country, and one person should be a member of a different political party from the student
herself. The student should ask about the legality and morality of each issue and whether current laws or
practices should be changed. The student should remain neutral in the interview and should outline the
views of all the people and be prepared to report them in class.
Research: The Internet and Free Speech
Students should find an Internet site that contains speech or pictures that they consider outrageous or
disgusting. The sites, for example, might use hate speech directed at racial or religious groups, offer
graphic illustrations of violence, or display pornography. Students should download and print, if possible,
the example they choose. They should write a two-paragraph argument urging that such material be
banned from the Internet, an opposing argument, and their own conclusion about whether or not to outlaw
the material.
Research: Constitutional Rights
Students should find an article in a newspaper, magazine, or through the Internet about a business
confronting a constitutional issue that typically we associate with human beings, such as free speech,
freedom of religion, eminent domain, due process, and searches and seizures.
Chapter Overview
Chapter Theme
The United States Constitution, drafted in 1787, is a series of compromises about the power of
government. The Constitution establishes the structure of our government, defines the powers and
limitations of the government, and guarantees the rights of individuals. This chapter presents basic
principles of constitutional law, government powers, and limitations on government power.
Government Power
The Constitution sits above everything else in our legal system. No law can conflict with it. The first part
of this chapter provides an overview of the Constitution, discussing how it came to be and how it is
organized. The second part describes the power given to the three branches of government. The third part
explains the individual rights the Constitution guarantees to citizens.
Separation of Powers
The Framers did not want to place too much power in any single place. One method of limiting power
was to create a national government divided into three branches, each independent and equal. Each
branch would act as a check on the power of the other two. Article I of the Constitution created a
Congress, which was to have legislative, or lawmaking, power. Article II created the office of the
President, defining the scope of executive, or enforcement, power. Article III established judicial, or
interpretive, power by creating the Supreme Court and permitting additional federal courts.
Individual Rights
The original Constitution was silent about the rights of citizens. This alarmed many who feared that the
new federal government would have unlimited power over their lives. So in 1791 the first ten
amendments, known as the Bill of Rights, were added to the Constitution, guaranteeing many liberties
directly to individual citizens.
Power Granted
Congressional Power
Congress wields tremendous power. Congress creates statutes that influence jobs, money, health care,
military, communications, and virtually everything else. Article I, section 8 is a critically important part of
the Constitution. It lists the eighteen types of statutes that Congress is allowed to pass, such as imposing
taxes, declaring war and coining money.
Interstate Commerce
The Commerce Clause under Article I, section 8 provides that Congress has the power to regulate
commerce among the states and with foreign nations. The Supreme Court has interpreted this power to
extend to any activity that has a substantial effect on interstate commerce.
The Patient Protection and A ordable Healthcare Act
In 2010, Congress passed the Patient Protection and Affordable Healthcare Act and President Barack
Obama signed it into law. The wide-ranging legislation was aimed at reducing the number of uninsured
Americans and also the cost of health care. Almost immediately after it passed, many states sued and
argued that the law violated the Constitution by exceeding Congress’s power to regulate interstate
commerce.
The challenge centered on a provision (which the press refers to as the “individual mandate”) in the
Act that required many people to purchase health insurance or face fines. The states argued that requiring
people to buy something was fundamentally different from regulating people who voluntarily decide to
participate in commerce.
Amidst contentious political debate, the lower courts were divided on whether this healthcare statute was
constitutional. In 2012, the Supreme Court had the final word in National Federation of Independent
Business v. Sebelius1. The Justices agreed in part with the states: requiring individuals to obtain health
insurance was not within Congress’s power under the Commerce Clause. Nevertheless, the Court held
that the individual mandate was a constitutional exercise of another one of Congress’s powers – its taxing
power. The Court reasoned that the fines imposed on individuals without health insurance could
reasonably be characterized as a tax and were therefore constitutional.
State Legislative Power
The Tenth Amendment says, “All powers not delegated to the United States by the Constitution…are
reserved to the States.”
The “dormant” or “negative” aspect of the Commerce Clause governs state efforts to regulate interstate
commerce. The dormant aspect holds that a state statute that discriminates against interstate commerce is
almost always unconstitutional.
Supremacy Clause
1 648 F. 3d 1235 (2012).
When both the federal and state governments pass regulations that are permissible, but conflicting, the
Supremacy Clause states that the Constitution, and federal statutes and treaties, shall be the supreme law
of the land.
• If there is a conflict between federal and state statutes, the federal law preempts the field, meaning it
controls the issue. The state law is void.
• Even in cases where there is no conflict, if Congress demonstrates that it intends to exercise exclusive
control over an issue, federal law preempts.
Thus state law controls only when there is no conflicting federal law and Congress has not intended to
dominate the issue.
Executive Power
Article II of the Constitution defines executive power. The President’s most basic job function is to
enforce the Nation’s laws. Three key powers concern the appointment of many administrative agency
officers and Supreme Court Justices, proposing, drafting and vetoing legislation, and establishing and
conducting foreign policy.
Judicial Power
Article III of the Constitution creates the Supreme Court and permits Congress to establish lower courts
within the federal court system. Federal courts have two key functions: adjudication and judicial review.
Adjudicating Cases
The federal court system hears criminal and civil cases. Generally, prosecutions of federal crimes begin in
United States District Court.
Judicial Review
Judicial review refers to the power of federal courts to declare a statute or governmental action
unconstitutional and void. This is one of the most important of all constitutional powers, yet it appears
nowhere in the Constitution. The Supreme Court simply declared that it had this power, in Marbury v.
Madison, in 1803. It has been controversial ever since.
Question: Why is judicial review so controversial?
Answer:
The people elect legislators, at the state and federal levels, largely to pass statutes. In theory, the
elected representatives pass statutes that represent the will of the majority.
Similarly, voters choose political leaders who will recommend legislation they want, sign it into
Question: Are there arguments in favor of judicial review?
Answer: Of course—it has, after all, been part of our constitutional heritage for over 200 years.
The power to invalidate legislative or executive acts that exceed the authority granted by Articles
I and II of the Constitution is critical to maintaining checks and balances among the branches.
Case: Kennedy v. Louisiana2
Facts: Patrick Kennedy was convicted of raping his eight-year-old stepdaughter L.H. A forensic expert
testified that L.H.’s injuries were the most severe he has ever witnessed from a sexual assault. The jury
also heard evidence that Kennedy had raped another eight-year-old girl. Kennedy was convicted of
aggravated rape, because the victim was under twelve years old.
The jury voted to sentence Kennedy to death. The state Supreme Court affirmed the sentence and
Kennedy appealed to the United States Supreme Court. Kennedy argued that the Louisiana statute
allowing the death penalty for the rape of a child was unconstitutional. The Eighth Amendment prohibits
cruel and unusual punishment, which includes penalties that are out of proportion with the crime.
Kennedy claimed that capital punishment was out of proportion to rape and thus violated the Eighth
Amendment.
Issues: Did the Louisiana statute violate the Constitution by permitting the death penalty in a case of child
rape?
Decision: Yes, the Louisiana statute violated the Eighth Amendment. Reversed.
Reasoning: Constitutional liberties create limits. States may define crimes and set punishments, but the
penalties must not be excessive in light of evolving standards of decency in modern society. The death
penalty requires special attention.
Only six states (Louisiana, Georgia, Montana, Oklahoma, South Carolina, and Texas) allowed for a death
sentence in cases of child rape. The other 44 states either did not have capital crimes or allow for the
death penalty only when a defendant takes a life.
The majority of the Justices determined that the crime in this case, while horrific, was nonetheless not
equivalent to murder in its “severity and irrevocability.” It concluded that Louisiana’s statute amounted to
cruel and unusual punishment.
Dissent by Justice Alito: The Court is wrong about the evolving standards of decency. In recent years,
five states have passed laws that impose capital punishment in capital rape cases. They have acted in
response to a significant increase in reports of the sexual abuse of children. These laws did not violate the
Eighth Amendment.
Question: Is rape, particularly child rape, punishable by capital punishment (the death sentence)?
Question: Why is that significant?
Question: Is it proper for the Supreme Court to decide this issue?
Answer: Yes, one of the roles of the Supreme Court is to determine the constitutionality of laws,
Additional Case: Youngstown Sheet & Tube Co. v. Sawyer3
Facts: During the Korean War, unions threatened to strike steel mills. President Truman responded by
ordering Secretary of Commerce Sawyer to seize the mills and keep them running. Sawyer began to issue
orders to company executives. A federal district court enjoined Sawyer from taking over the companies;
the Court of Appeals stayed the injunction; and the Supreme Court immediately granted certiorari.
2 128 S.Ct. 2641, United States Supreme Court, 2008.
3 343 U.S. 579, 72 S. Ct. 863, 1953 U.S. LEXIS 2625 United States Supreme Court, 1952.
Issue: Did the President have the constitutional power to seize the steel mills?
Holding: No, he did not have the power. The President may only act pursuant to statutory or
constitutional power, neither of which existed here. Congress had passed no law permitting such a
takeover. There is no express constitutional power for the President to seize a private company and run it,
nor do any of the President’s specified powers imply such a right. The Court affirmed the injunction
barring the takeover.
Question: What is the source of the President’s power?
Answer: Article II of the Constitution defines executive power and vests it in the President. Article II
Question: Does Article II or any other part of the Constitution expressly grant the President power to
seize private property?
Question: Then what is the basis for Truman’s argument?
Answer: Truman argued that the power to seize the mills is implied from the aggregate of powers
Question: Why didn’t Truman’s argument prevail?
Answer: The Court rejected the argument that his powers as Commander in Chief were unlimited. It
held that the grant of power to ensure faithful execution of the laws indicated the President is not a
Question: What was the outcome?
Answer: Truman complied with the Court’s order. By doing so he respected the powers granted to the
Nixon and Executive Privilege
During the Senate’s Watergate investigation, it became known that President Nixon had recorded virtually
all discussions in the Oval Office. Special prosecutor Archibald Cox, in charge of investigating and
prosecuting crimes associated with the break-in, subpoenaed tapes of some meetings and telephone
conversations, for use in cases against various Nixon staff members. The President refused to release the
tapes, citing executive privilege. Instead, Nixon fired Cox, although the two highest-ranking members of
the Justice Department refused to carry out the order to fire Cox, and Nixon had to fire them as well. An
enormous public outcry at the firings forced Nixon to hire a new prosecutor, Leon Jaworski, who resumed
the battle for the tapes.
Judge Sirica, the District Court Judge, ordered the President to turn over the tapes, and the President
appealed the case to the Supreme Court. The issues were whether a special prosecutor had the right to
subpoena tapes of presidential conversations, and whether a court had the power to order the chief
executive to turn them over. During oral arguments before the Supreme Court, Mr. Nixon’s lawyer
suggested that the President might not obey a Court order to hand over the documents.
The Court unanimously rejected the argument of executive privilege and ordered the President to produce
the tapes. It ruled that a “generalized assertion of privilege must yield to the demonstrated, specific need
for evidence in a pending criminal trial.” The Nation held its breath. Would Mr. Nixon hand over tapes
that presumably contained evidence damaging to his presidency? Or would he refuse to obey an order of
the Supreme Court? President Nixon concluded that, legally and politically, he had no choice. He turned
over the tapes to the special prosecutor. Like Mr. Truman, he chose to obey a Court order that he hated.
The tapes demonstrated that he had known about the cover-up of the Watergate break-in, and had himself
violated the law. Two weeks later, Mr. Nixon resigned, the only President ever to do so.
Bush, FISA, and Warrantless Wiretaps
In December 2005, The New York Times reported that President Bush had authorized the National
Security Agency (NSA) to conduct domestic surveillance without a warrant or court order; activities that
many believe violate the Fourth Amendment prohibition on warrantless searches and seizures. Mr. Bush
claimed two separate grounds for his authority: Article II of the Constitution, which vests in him as
Commander in Chief the authority during wartime to take such steps as he deems necessary to protect
national security; and the Joint Resolution authorizing the use of force enacted by Congress on September
14, 2001 in the wake of the 9/11 terrorist attacks.4
Whether the warrantless surveillance reported by The New York Times and other media is lawful requires
complex analysis beyond the scope of this manual. Briefly, though, the issues include:
Whether there is a Fourth Amendment exception permitting warrantless surveillance and searches for
gathering foreign intelligence, a question left open by the Supreme Court in Katz v United States, 389
U.S. 347 (1967) and United States v United States District Court, 407 U.S. 297 (1972) (the “Keith
Decision”);
Whether the Foreign Intelligence Surveillance Act (50 U.S.C. s. 1801 et. seq.) (“FISA”), enacted by
Congress in response to the Keith Decision to require judicial oversight of domestic surveillance of
persons acting on behalf of a foreign power, requires approval by the special court created by FISA;
Whether the warrantless surveillance is a manifestation of the “necessary and appropriate force”
authorized by the September 14, 2001 Joint Resolution (Pub. L. No. 107-40) to prevent future
terrorist attacks against the United States; and
Whether Article II of the Constitution grants the President as Commander in Chief of the armed forces
the authority to conduct such warrantless surveillance.5
Judicial Activism refers to a court’s willingness, or even eagerness, to become involved in major issues
and to decide cases on constitutional grounds.
Judicial Restraint refers to an attitude that courts should leave lawmaking to legislators and nullify a law
only when it unquestionably violates the Constitution.
Protected Rights
The amendments to the Constitution protect United States citizens, and generally corporations, from the
power of state and federal government. Constitutional rights generally protect only against governmental
acts. The Constitution generally does not protect us from the conduct of private parties, such as
corporations or other citizens. The great majority of these rights also extend to citizens of other countries
who are in the United States.
First Amendment: Free Speech
The First Amendment protects free speech, but that protection is not absolute. Some forms of speech,
such as obscenity, receive no protection.
4 “White House Elaborates on Authority for Eavesdropping,” Charles Lane, The Washington Post, Dec.
20, 2005
5 “Legal Analysis of the NSA Domestic Surveillance Program,” Orin Kerr, The Volokh Conspiracy, Dec.
19, 2005 http://volokh.com/posts/1135029722.shtml; Did Bush Have the Legal Authority Under FISA to
Authorize NSA Surveillance?, Daniel J. Solove, Concurring Opinions, Dec. 17, 2005,
http://www.concurringopinions.com/archives/2005/12/so_whats_bushs.html; The Security Threat of
Unchecked Presidential Power, Bruce Schneir, Schneir on Security, Dec. 21, 2005
http://www.schneier.com/blog/archives/2005/12/the_security_th_1.html
Case: Texas v. Johnson6
Facts: In 1984, outside the Republican National Convention in Dallas, Gregory Johnson participated in a
protest against policies of the Reagan administration. Participants gave speeches and handed out leaflets.
Johnson burned an American flag. He was arrested and convicted under a Texas statute that prohibited
desecrating the flag, but the Texas Court of Criminal Appeals reversed on the grounds that the conviction
violated the First Amendment. Texas appealed to the United States Supreme Court.
Issue: Does the First Amendment protect flag burning?
Decision: Affirmed. The First Amendment protects flag burning.
Reasoning: The First Amendment literally applies only to “speech,” but the Supreme Court had already
ruled that the Amendment also protects written words and other conduct that conveys a specific message.
For example, earlier decisions protected a student’s right to wear a black armband in protest against
American military actions. Judged by this standard, flag burning is symbolic speech.
Texas argued that its interest in honoring the flag justified its prosecution of Johnson, since he knew that
his action would be deeply offensive to many citizens. However, if there is a bedrock principle underlying
the First Amendment, it is that the government may not prohibit the expression of an idea simply because
society finds it offensive.
The best way to preserve the flag’s special role in our lives is not to punish those who feel differently but
to persuade them that they are wrong. We do not honor our flag by punishing those who burn it, because
in doing so we diminish the freedom that this cherished emblem represents.
Comment: In dissent, Justice Rehnquist wrote, “In holding this Texas statute unconstitutional, the Court
ignores Justice Holmes’ familiar aphorism that ‘a page of history is worth a volume of logic.’ For more
than 200 years, the American flag has occupied a unique position as the symbol of our Nation, a
uniqueness that justifies a governmental prohibition against flag burning in the way respondent Johnson
did here.”
Question: How does Justice Brennan, for the majority, respond to Justice Rehnquist’s point that the
flag is not just a symbol but a unique symbol?
Answer: Brennan says, “The way to preserve the flag’s special role is not to punish those who feel
General Question: With whom do you agree?
Questions for those who agree that the First Amendment protects flag burning:
Isn’t it very painful for veterans of foreign wars, some permanently disabled, to see someone burn
the flag that they fought for?
Did Johnson contribute any valuable ideas when he burned the flag?
If he contributed nothing, why should a state be forced to permit his actions?
If the majority of a state’s citizens want to outlaw flag burning, why shouldn’t they be allowed to?
Questions for those who argue that the First Amendment does not protect flag burning:
If a state could outlaw flag burning, could it also outlaw burning a copy of the Constitution? A
photograph of the flag? A cross? A photograph of the President?
Even if some people regard the flag as special, why should their opinion be the law of the land?
Doesn’t the anger created by flag burning indicate that it is effective speech? Should we outlaw
effective speech and permit only speech that offends no one?
6 491 U.S. 397, 109 S. Ct. 2533, 1989 U.S. LEXIS 3115 United States Supreme Court , 1989.
Additional case: You Be the Judge: Barnes v. Glen Theatre, Inc.7
Facts: Indiana’s public indecency statute prohibits any person from appearing nude in a public place. A
nightclub called the Kitty Kat Lounge, and several dancers who wished to perform nude, filed suit,
seeking an order that the statute was unconstitutional. The United States District Court ruled that the
dancing was not expressive conduct. The Court of Appeals reversed, declaring that it was nonobscene
expressive conduct and thus protected by the First Amendment. Indiana did not argue that the dancing
was obscene. (If that were the issue, the Miller test would have determined the outcome.) Instead, Indiana
claimed that its general police powers, including the power to protect social order, allowed it to enforce
such a statute.
Issue: Does Indiana’s public indecency statute violate the First Amendment?
Holding: Although the Court was sharply divided, it upheld the statute. The Court, per Chief Justice
Rehnquist, held that this dance is expressive conduct but only within the outer perimeters of First
Amendment protection. The state has a substantial interest in protecting societal order and morality and,
as this statute only incidentally limits some expressive activity, it does not violate the First Amendment.
Question: What are a state’s “police powers?”
Answer: The police powers are the inherent rights of states (reserved to them by the operation of the
Question: Is it important that Indiana did not argue that the dancing was obscene?
Answer: Possibly. Had the Court applied the Miller test to determine obscenity the result may have
Question: What specific purpose did the Indiana statute serve?
Answer: Indiana defended the statute on very general grounds, that it served public health, safety,
Question: Doesn’t a state law that interferes with expression require strict scrutiny?
Answer: Usually. The Court’s response to this case was fractured, with Chief Justice Rehnquist and
Justices O’Connor and Kennedy agreeing that the statute did not violate the First Amendment and
Political Speech
Political speech is protected unless it is intended and likely to create imminent lawless action.
One of the most important recent developments in constitutional law concerns the ability of organizations
to engage in political speech.
Case: Citizens United v. Federal Election Commission8
Facts: Citizens United, a nonprofit organization, produced a documentary on presidential candidate
Hillary Clinton. The group wanted to run television ads promoting “Hillary: the Movie.” The Bipartisan
7 501 U.S. 560, 111 S. Ct. 2456, 1991 U.S. LEXIS 3633 United States Supreme Court, 1991.
8 130 S. Ct. 876, Supreme Court of the United States, 2010.
Campaign Reform Act of 2002 banned “electioneering communication” by corporations and unions for
the 30 days before a presidential primary. Citizens United challenged the Act, arguing that it violated the
First Amendment.
Issue: Did the Bipartisan Campaign Reform Act violate the First Amendment?
Decision: Yes, the law violated the First Amendment.
Reasoning: Prohibiting organizations from “electioneering communications” amounts to censorship.
Speech is vital to a democracy, and it must not be suppressed.
Corporations are protected by the First Amendment, and therefore, they have the right to express their
political views. Yet, under this statute, any negative portrayal of a politician on television, radio, or
YouTube, that takes place near an election could be a felony.
Corruption should be curbed, but not at the expense of free speech. Americans must be allowed to decide
for themselves which ideas are worthy of discussion. The government cannot make the decision for them.
Question: How did the Bipartisan Campaign Reform Act violate the First Amendment?
Answer: By attempting to prevent individuals and organizations from disseminating information and
Question: Should a movie be considered “free speech”?
Commercial Speech
This is speech that has a dominant theme to propose a commercial transaction. Although the First
Amendment protects commercial speech, the government may regulate it more closely than other forms
of speech. Commercial speech that is false or misleading may be outlawed altogether. Regulations on
permissible commercial speech must be reasonable and directed to a legitimate goal.