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Suggested 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, the greatest legal document ever written, is a series of compromises about
the power of government. The compromises affect every citizen and company in the nation, every day.
Quote of the Day
“Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.”
–John Milton (1608 1674), English poet, Areopagitica: A Speech for the Liberty of Unlicensed Printing to
the Parliament of England (1644).
Government Power
The Constitution of the United States has lasted longer and governed more than any other written
constitution. The Constitution is short, relatively easy to read, and open to interpretation. It has been
amended 27 times and interpretations have changed over the years. This accessibility and flexibility are
part of the reason the document has endured.
Separation of Powers
The Framers did not want 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 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 10
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. Its members create statutes that influence our 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 18 types of statutes that Congress is allowed to pass, such as imposing
taxes, declaring war and coining money.
Interstate Commerce
Interstate commerce may not be the sexiest of topics but it is an excellent vehicle for teaching federalism,
concurrent and exclusive jurisdiction, and the scope of and limits on federal power. One way into the
topic is to define interstate commerce. Students tend to approach this topic with the view that interstate
commerce requires goods or services crossing state lines. A discussion of Wickard v Fillburn and the
substantial effect rule will help students understand the breadth of Congress’ power under the commerce
clause. That discussion can segue into a current case, The Patient Protection and Affordable Care Act,
which was upheld by the U.S. Supreme Court in June 2012.
National Federation of Independent Business v. Sebelius
576 U.S. ___, 132 S. Ct. 2566
United States Supreme Court, 2012
Facts: In 2010, Congress enacted the Patient Protection and Affordable Care Act (the Act), which aimed
to increase the number of Americans covered by health insurance and decrease the cost of health care.
The Act required most Americans either to maintain health insurance coverage, or pay a “penalty” to the
IRS. This provision was commonly referred to as the “individual mandate.” The logic was that, if
everyone—even healthy young people—had health insurance, health care costs would go down for all.
On the day President Obama signed the Act into law, 13 states challenged it, alleging that neither
the Constitution’s Commerce provision nor its Taxing Clause gave Congress the authority to enact the
individual mandate. Both the federal district court and the appeals court agreed. The Supreme Court
granted certiorari.
Issue: Did Congress have the power to make every American purchase health insurance?
Excerpts from Chief Justice Roberts’s Decision: In our federal system, the National Government
possesses only limited powers; the States and the people retain the remainder. In this case we must
determine whether the Constitution grants Congress power to enact the individual mandate under the
Commerce Clause or as an exercise of its power to tax.
The Constitution authorizes Congress to regulate interstate commerce and activities that
substantially affect interstate commerce. [The Government argues] Congress may order individuals to buy
health insurance because the failure to do so affects interstate commerce.
[But] the individual mandate does not regulate existing commercial activity. It instead compels
individuals to become active in commerce by purchasing a product, on the ground that their failure to do
so affects interstate commerce.
Every day individuals do not do an infinite number of things. Allowing Congress to justify federal
regulation by pointing to the effect of inaction on commerce would bring countless decisions within the
scope of federal regulation, and empower Congress to make those decisions.
[This] logic would justify a mandatory purchase to solve almost any problem. Many Americans
do not eat a balanced diet. The failure of that group to have a healthy diet increases health care costs to a
greater extent than the failure of the uninsured to purchase insurance. Under the Government’s theory,
Congress could address the diet problem by ordering everyone to buy vegetables.
The Commerce Clause is not a general license to regulate an individual from cradle to grave,
simply because he will predictably engage in particular transactions. Any police power to regulate
individuals as such, as opposed to their activities, remains vested in the States.
The individual mandate forces individuals into commerce precisely because they elected to
refrain from commercial activity. Such a law cannot be sustained under a clause authorizing Congress to
“regulate Commerce.”
Congress also has the power to “lay and collect Taxes.” Even if Congress lacks the power to
direct individuals to buy insurance, the only effect of the individual mandate is to raise taxes on those
who do not do so, and thus the law may be upheld as a tax.
Under the mandate, if an individual does not maintain health insurance, the only consequence is
that he must pay the IRS. The mandate is not a legal command to buy insurance. Rather, it makes going
without insurance just another thing the Government taxes, like buying gasoline or earning income. And
if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it [is]
within Congress’s constitutional power to tax.
The [Act’s penalty] looks like a tax in many respects, regardless of labels. It is paid into the
Treasury by taxpayers when they file their tax returns. The IRS must assess and collect it in the same
manner as taxes. This process yields the essential feature of any tax: it produces at least some revenue for
the Government.
The Federal Government does not have the power to order people to buy health insurance. The
Federal Government does have the power to impose a tax on those without health insurance. [The
individual mandate] is therefore constitutional, because it can reasonably be read as a tax. Because the
Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.
The judgment of the Eleventh Circuit is affirmed in part and reversed in part.
Question: Where is the Commerce Clause found?
Question: What was the Court’s opinion of the Commerce Clause as justification for the “individual
mandate”?
Question: What Congressional power did the Court determine justified the “individual mandate?”
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 which discriminates against interstate commerce
is almost always unconstitutional.
Supremacy Clause
What happens when both the federal and state governments pass regulations that are permissible, but
conflicting? Article VI of the Constitution contains the answer. 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 of his key powers concern the following:
Appointment – includes many administrative agency officers and Supreme Court Justices
Legislation – includes proposing, drafting, and vetoing legislation
Foreign policy – includes establishing and conducting foreign policy.
The president also has the power to pardon federal crimes.
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. That same court has limited jurisdiction to hear civil lawsuits.
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
With judicial review, one branch of government—the judicial—has taken upon itself the power to
Federal judges are appointed, not elected. This means that judges appointed for life have the
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
It is a virtue that judicial review is exercised by appointed judges with life tenure who are likely
Case: Kennedy v. Louisiana1
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? Is it proper for the Supreme Court to decide this issue?
Excerpts from Justice (Anthony) Kennedy’s Writing of the Majority Opinion: The Eighth
Amendment mandates that the State’s power to punish be exercised within the limits of civilized
standards. Evolving standards of decency that mark the progress of a maturing society counsel us to be
most hesitant before interpreting the Eighth Amendment to allow the extension of the death penalty, a
hesitation that has special force where no life was taken in the commission of the crime.
Consistent with evolving standards of decency and the teachings of our precedents we conclude that ,
in determining whether the death penalty is excessive, there is a distinction between intentional
first-degree murder on the one hand and nonhomicide crimes against individual persons, even including
child rape, on the other. The latter crimes may be devastating in their harm, as here, but in terms of moral
depravity and of the injury to the person and to the public, “they cannot be compared to murder in their”
severity and irrevocability.
1 128 S.Ct. 2641, United States Supreme Court, 2008.
Louisiana reintroduced the death penalty for rape of a child in 1995. Five states have since followed
Louisiana’s lead: Georgia, Montana, Oklahoma, South Carolina, and Texas. By contrast, 44 states have
not made child rape a capital offense. As for federal law, Congress in the Federal Death Penalty Act of
1994 expanded the number of federal crimes for which the death penalty is a permissible sentence,
including certain nonhomicide offenses; but it did not do the same for child rape or abuse. [The court
concludes that there is a national consensus against imposing the death penalty for rape, and strikes down
the Louisiana statute.]
Justice Alito, dissenting: If anything can be inferred from state legislative developments, the message is
very different from the one that the Court perceives. In just the past few years, five states have enacted
targeted capital child-rape laws. Such a development would not be out of step with changes in our
society’s thinking. During that time, reported instances of child abuse have increased dramatically; and
there are many indications of growing alarm about the sexual abuse of children. [The judgment of the
Louisiana Supreme Court should be affirmed.]
Question: Does Article III grant the power to the U.S. Supreme Court to overturn the law enacted by
the Louisiana legislature?
Question: Then, how is the U.S. Supreme Court able to overturn Louisiana’s statute?
Question: Do you favor the majority opinion or the dissenting opinion by Justice Alito?
Question: What school of legal thought is Justice Alito invoking?
Additional Case: Youngstown Sheet & Tube Co. v. Sawyer2
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.
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
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?
2 343 U.S. 579, 72 S. Ct. 863, 1953 U.S. LEXIS 2625 United States Supreme Court, 1952
Answer: The Court rejected the argument that his powers as Commander in Chief were unlimited. It
Question: What was the outcome?
Answer: Truman complied with the Court’s order. By doing so he respected the powers granted to
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 argument 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.3
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”);
3 “White House Elaborates on Authority for Eavesdropping,” Charles Lane, The Washington Post, Dec.
20, 2005
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.4
Judicial Activism and Judicial Restraint
Students are likely to equate judicial activism with liberal political beliefs and judicial restraint with
conservative political beliefs. These characterizations are simplistic and misleading:
“Activism toward what? Restraint toward what? Are judges deemed to be activist or restrained toward
(1) the current popular majority, (2) the legislature representing the current popular majority, (3) the
statutes passed by present or past legislatures, (4) the acts of current of past executive or administrative
agencies, (5) the meaning of the words in the Constitution, (6) the principles or purposes of those who
wrote the Constitution, or (7) the legal precedents established by previous judicial interpretations of the
Constitution?”5
One can argue that Griswold v Connecticut, the 1965 decision striking down Connecticut’s ban on
contraceptive devices (see additional question 3 on page 128), and Dred Scott v Sanford, the 1857
decision holding that blacks could never become citizens of the United States, are both examples of
judicial activism. To apply the original intent of the framers of the Constitution in a current case
involving, say, a search of a home using infrared heat sensors certainly requires something more active
than reading the text of the Fourth Amendment and The Federalist Papers.6 Rather than using them as
shorthand terms devoid of meaning, encourage students to define precisely the court’s rationale in any
discussion of judicial activism or judicial restraint.
Protected Rights
First Amendment: Free Speech
On March 1, 2006, this story appeared in the media:
Americans apparently know more about The Simpsons than they do about the First Amendment. Far
more Americans can identify Lisa, Marge, Maggie, Homer, and Bart than the First Amendment
freedoms. Only one in four Americans can name more than one of the five freedoms guaranteed by
the First Amendment (freedom of speech, religion, press, assembly, and petition for redress of
grievances.) But more than half can name at least two members of the cartoon family, according to a
survey.7
Some students will readily demonstrate this deplorable state of affairs. They will parrot words to the
effect that “freedom of speech is the bedrock upon which this country was founded” and then fail to
4 “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
5 “Judicial Activism Reconsidered,” Thomas Sowell Hoover Institution Press 1989
http://www.tsowell.com/judicial_activism.htm
6 See Kyllo v United States, 533 U.S. 27; 121 S. Ct. 2038; 150 L. Ed. 2d 94; 2001 U.S. LEXIS 4487
United States Supreme Court, 2001
recognize speech that the First Amendment obviously protects. They are willing to ban speech if it is
upsetting, provokes a strong reaction in others, or criticizes the President. One goal in the section on
protected rights is to teach students not only what the Bill of Rights says, but what it means. Texas v
Johnson and Barnes v Glen Theatre, Inc. are excellent cases for provoking spirited discussion about
protected speech.
7 “Study: More know ‘The Simpsons’ than First Amendment rights,” The USA Today, Mar 1, 2006
http://www.usatoday.com/news/nation/2006-03-01-freedom-poll_x.htm; Simpsons ‘trump, First
Amendment, BBC News, Mar 1, 2006 http://news.bbc.co.uk/2/hi/americas/4761294.stm
