Section 1: The First Amendment: Your Freedom of Expression

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Chapter 13 Supreme Court Cases

• 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

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Section 1 at a Glance

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

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The First Amendment Your Freedom of Expression
Reading Focus Your freedom of expressionthe
right to practice your religious beliefs to
hold, express, and publish ideas and opinions to
gather with others and to ask the government to
correct its mistakesis the cornerstone of our
democracy. Through its power to interpret the
Constitution, the Supreme Court can expandor
limityour rights.
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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.
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Students Right of Expression (contd.)

• The Supreme Court Decision
• Tinkers and others argued schools ban on
  armbands violated right to free speech under
  First, Fourteenth Amendmentsarmbands symbolic
  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 courts 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 Constitutions protection of
  free expression

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Students Right of Expression (contd.)

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

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WHAT DO YOU THINK?
1. Are protests like Tinkers disruptive of
school activities? Explain your point of view.
2. Should school authorities have the right to
censor student speeches or newspapers? Why or why
not?
3. Is the Tinker test an adequate way to handle
issues related to students freedom of
expression? Why or why not?
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Freedom of Religion
The First Amendment guarantees your right to
freedom of expression, the right of citizens to
hold, explore, exchange, express, and debate
ideas. Congress shall make no law respecting an
establishment of religion, or prohibiting the
free exercise thereof. These two guarantees are
known as the establishment clause and the free
exercise clause.
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Freedom of Religion

• Religion and Instruction
• Teaching about religion and the Bible allowable
• Instruction must be done in nonreligious manner
• Cannot include teaching of religious beliefs
• 1968 Epperson v. Arkansas
• Overturned law that prohibited teaching of
  evolution
• 1987 Edwards v. Aguillard
• Voided Louisiana law requiring religious view
  known as creation science to be taught alongside
  evolution

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Freedom of Religion (contd.)

• The Free Exercise Clause
• First Amendment seems to make freedom of
  religious belief an absolute right
• Court has drawn distinction between right to
  believe and right to express beliefs through
  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

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Compelling Interest Test

• West Virginia State Board of Education v.
  Barnette, 1943
• Court upheld students right to refuse to salute
  flag, recite Pledge if it violated their
  religious beliefs
• Making patriotic ceremonies voluntary did no harm
  to society

• Sherbert v. Verner, 1963
• Reversed South Carolinas denial of unemployment
  benefits to woman fired for refusing to work on
  Saturdays, her day of worship
• Societys gain did not outweigh persons freedom
  to follow beliefs

• Goldman v. Weinberger, 1986
• Upheld Air Forces ban on wearing nonmilitary
  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

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Contrasting How did the Courts position on
religious expression in Sherbert v. Verner
differ from its position in the Smith case?
Answer(s) To be announced (TBA) in class.
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Freedom of Speech
Congress shall make no lawabridging freedom of
speech, or of the press Is speech only spoken
words, or does it include other forms of
expression? Are there limits to this freedom?
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Summarizing What limits are placed on student
speech?
Answer(s) TBA in class.
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Freedom of Petition and Assembly

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

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Drawing Conclusions How do the freedoms of
petition and assembly support a republican form
of government?
Answer(s) TBA in class.
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Freedom of Petition and Assembly (contd.)

• Student Assembly
• Limits that apply to public also apply to
  students in school
• Court has been more restrictive of student rights
• Schools have right to control time, place, manner
  of gatherings, set restrictions on school clubs,
  have right to deny some clubs permission to form

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Making Generalizations What kinds of school
clubs are not protected by the right of assembly?
Answer(s) TBA in class.
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SimulationThe Plays the Thing
Will students from Home City High School be
allowed to stage their play? Issues of student
free speech can take many forms, including plays
performed by student drama groups. Using what you
have learned in Section 1, complete the
simulation about a fictional lawsuit seeking
permission to perform a student play.
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Simulation (contd.)

• Roles
• Federal judge
• Jurors
• Plaintiffs attorneys
• Defendants attorneys
• Attorney for Civil Liberties Association (CLA)
• Attorney for Center for Free Student Press (CFSP)
• Attorney for Association of United Churches (AUC)
• Attorney for Association of School Administrators
  (ASA)
• Drama club members
• School principal
• School newspaper editor
• Other witnesses

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Simulation (contd.)

• The Situation
• Drama club wants to stage play on life,
  teachings, impact of historical founder of
  Eastern religion
• Permission to present play to all-school assembly
  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

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Simulation (contd.)

• 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 sides case
• Jury renders verdict for plaintiffs or defendants
  after each sides case heard

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Simulation (contd.)
Debriefing After the jury has reached its
verdict, discuss the jurys findings as a class.
Assess whether the jury, the attorneys, and
expert witnesses for each side correctly applied
the First Amendment and case law to the facts in
this trial. Then write a one-page summary
explaining whether you agree with the verdict and
why or why not.
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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.

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The Fourth Amendment Your Right To Be Secure
Reading Focus The Fourth Amendment guarantees
your right to be secure against unreasonable
searches and seizuresin other words, it
guarantees that you have rights to some sorts of
privacy. As with First Amendment rights, Fourth
Amendment rights are not absolute and are subject
to judicial interpretation. In this cyber age,
protection of these rights is perhaps more
important than ever.
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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?
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The Right to Privacy (contd.)

• The Court Hears Illinois v. Caballes
• 2003, Illinois Supreme Court reversed Caballess
  conviction, said drug-sniffing dog at routine
  traffic stop violated Fourth Amendment rights
• State appealed ruling to Supreme Court
• 2004, Supreme Court hears Illinois v. Caballes
• Government argued dog sniff not search, does not
  violate privacy
• Justice Souter agreed not full-blown search but
  asked if it were constitutional, what would
  prevent police from walking dogs around every
  private home just to see if they get a sniff of
  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
• Caballess attorney argued sniff was search, like
  scanner revealed something hidden from view
  police had no reasonable suspicion to search car

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The Caballes Decision

• 2005, Illinois v. Caballes 62 decisionCourt
  reversed Illinois Supreme Court, upheld
  Caballess conviction
• Majority opinion person has no legitimate
  privacy interest in possessing drugs or contraband

• Government action indicating possession of
  contraband does not violate 4th Amendment privacy
  interests
• Court agreed with states argument that dog sniff
  not a search

• If traffic stop lawful, police had right to use
  sniffer dog
• Dissenting opinions dogs can be wrong as result
  of poor training, errors by handler, dogs
  limited ability
• Dogs bark not probable cause

• Justice Ginsburg every traffic stop could
  become an occasion to call in the dogs
• Worried Court decision could clear way for police
  with dogs to be stationed at long traffic lights,
  circling cars waiting for green lights

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WHAT DO YOU THINK?
1. Is a trained dogs sniff of someone or
something a search of that person or thing?
Explain why or why not.
2. Do you agree with the majority of the Court in
the Caballes case or with the dissenting
opinions? Explain why.
3. Would your opinion in the Caballes case be
different if it had involved a bomb-sniffing dog
instead? Explain why or why not.
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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.
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Probable Cause and Warrants
To obtain a warranta court order to search for
something or seize someonethere must be probable
cause to believe the search will produce evidence
of a crime, or that the person seized committed a
crime.
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Summarizing - 1 How are search and seizure
related?
Answer(s) Will be discussed in class.
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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.
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Searches of Homes

• Court applies highest expectation of privacy to
  peoples homes
• Warrant required in most cases to search homes
• 1998, Minnesota v. Carter no reasonable
  expectation of privacy when illegal drugs involved

• 1988, California v. Greenwood garbage cans may
  be searched without warrant no expectation of
  privacy for items thrown away
• 1986, California v. Ciraolo arrest allowed after
  marijuana spotted from police plane

• 2001, Kyllo v. United States Court drew line at
  use of devices to look through walls of homes
  from outside
• Overturned arrest of man because thermal scan of
  home revealed marijuana growing inside

• Thermal scan reveals information normally
  available only with actual intrusion into house,
  requiring warrant
• Authorities did not have warrant, therefore
  seizure of evidence, arrest unconstitutional

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• 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 individuals privacy right

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Intrusive Searches

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

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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 nations
  school-children is at least as important
  asdeterring drug use by engineers and trainmen

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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

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Private Communication

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

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• Wireless Searches
• Many of todays communications devices use
  wireless communication
• Anyone with scanner tuned to proper frequencies
  can intercept signals
• Such interception illegal, except for law
  enforcement agencies
• Warrant must be obtained to monitor wireless
  communications
• PATRIOT Actsome standards for obtaining warrants
  relaxed, eliminated

• National Security and the Courts
• Several 4th Amendment challenges to government
  surveillance programs now before federal courts
• 2006, United States v. Arnold case of search of
  laptop contents at airport
• 2006, class-action suit accusing ATT of turning
  over phone records of millions of Americans to
  the National Security Agency
• Government argues that actions necessary to
  protect national security
• Supreme Court likely to be asked to decide these
  issues, other similar cases

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Summarizing - 2 Why are National Security
Letters controversial?
Answer(s) Will be discussed in class.
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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.
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Simulation (contd.)

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

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Simulation (contd.)

• 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

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Simulation (contd.)

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

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Simulation (contd.)
Debriefing While the Supreme Court is
deliberating its decision, write a one-page
decision of your own, revealing how you would
decide the case if you were on the Court. After
the Courts decision is read, discuss whether you
agree or disagree with the Courts opinion or
opinions.
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Section 3 at a Glance

• Due Process and the Fourteenth Amendment
• Due Process and Public Schools Learn about how
  the Fourteenth Amendment right to due process
  applies to public schools.
• Learn about how the Supreme Court has used the
  due process clause of the Fourteenth Amendment to
  expand and protect peoples rights.
• Terrorists and Due Process Use your knowledge to
  argue a case involving due process issues before
  the Supreme Court.

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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.
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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.
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Due Process and Public Schools (contd.)

• The Court Hears Goss v. Lopez
• School argued because there was no constitutional
  right in Ohio to public education, no requirement
  school provide due process
• Attorneys for Lopez pointed to Ohio law requiring
  state to provide free education for all students
• Argued suspending without due process
  unconstitutionally deprived students of this
  right

• The Supreme Courts Decision
• 1975 in 54 decision Court said because Ohio
  offered public education, students could not be
  deprived of that right without due process
• Justice White Ohio had made education a property
  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.
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WHAT DO YOU THINK?
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.
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Due Process and Equal Protection

• 14th Amendment no state shall deprive any
  person of life, liberty, or property without due
  processnor deny any personequal protection of
  the laws
• Court has applied many Bill of Rights guarantees
  to actions of states through doctrine of
  incorporation, and has applied idea of equal
  protection against actions of federal government
• Due processlaws, process, and procedures of
  applying them must be fair
• Equal protectioneach person in same, similar
  circumstances stands before law equally
• Procedural due processcertain procedures must be
  followed in carrying out, enforcing law
• Substantive due processif way laws carried out
  are fair, then laws themselves must be fair
• People have natural rights not listed in
  Constitution
• To be fair a law cannot violate peoples natural
  rights

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Summarizing Explain how procedural due process
and substantive due process ensure that a person
will have a fair trial.
Answer(s) Will be discussed in class.
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Substantive Due Process

• Constitution does not create or grant rights
• Protects, guarantees unalienable rights
  referred to in Declaration
• Purpose of 9th Amendment recognize, protect
  rights not explicitly statedunenumerated rights
• Court has used doctrine of substantive due
  process to decide what some of those rights are,
  including certain property rights, right to
  privacy, others

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The Decision and the Dissent

• 54 decision, justices agreed with bakeshop
  owners
• Overturned conviction, ruled Bakeshop Act
  unconstitutional
• When considering if exercise of states 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 Courts majority
  should have respected legislatures judgment
  instead of own point of view
• A constitution is not intended to embody a
  particular economic theory...

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Lochners Effect

• After Lochner, first criticisms of substantive
  due process heard
• Court attacked for using doctrine to impose its
  views, values on nation
• As Court continued to apply substantive due
  process to laws affecting property rights,
  criticism grew

• 1938, United States v. Carolene Products Company
  Court said it would apply only rational basis
  test to economic regulations
• Rational basis test meant for a law to be upheld,
  government would have to show only it had good
  reasonrational basisfor passing law
• When Court called upon to review law, rational
  basis test the least strict standard it can apply

The practical result of the Courts announcement
was that it nearly stopped applying substantive
due process to property rights. However, it said
it would apply a stricter test to laws that
affected personal rights.
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Protecting Personal Rights
After Carolene, the Court did begin to use
substantive due process to define basic personal
rights, none of which are expressly listed in the
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

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Protecting Personal Rights

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

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Identifying the Main Idea How has the Courts
theory and use of substantive due process changed?
Answer(s) TBA in class.
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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.
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• Stanley v. Illinois (1972)
• Illinois law defined parent as father and
  mother of child born to married couple, and the
  mothernot fatherof child born to unmarried
  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 states
  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

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Procedural Due Process and Juvenile Justice
By 1899 states recognized that juvenile offenders
should be treated differently from adult
criminals. Unfortunately, juvenile proceedings
were often informal and did not include due
process protections. In the 1967 landmark case In
re Gault, the Court extended many of the due
process requirements of adult proceedings to the
juvenile justice system.

• Background to Gault
• 15-year-old Gerald Gault taken into custody
  following complaint by Arizona woman who believed
  him to be person who made lewd phone call to her
• Mother went to juvenile center, learned son would
  have juvenile court hearing next afternoonnever
  told what he was charged with
• Neither Gault nor parents advised he could have
  attorney judge took no testimony from family no
  one testified under oath no record of
  proceedings accuser not required to appear,
  denying right to confront, cross-examine
• Judge found Gerald guilty, sentenced him to state
  industrial school till 21

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Procedural Due Process and Juvenile Justice

• The Gault Decision
• Arizona lawGault had no right to appeal
  conviction, punishment
• Appealed to Supreme Court claiming minors should
  have same due process rights as adults
• Court agreed neither 14th Amendment nor Bill of
  Rights for adults alone
• Condition of being a boy does not justify
  kangaroo court

• Gaults Impact
• Gault gave juveniles most of same due process
  rights as adults
• Rights to know what they are charged with, to
  counsel, to confront witnesses
• Did not give all same rightsin most states
  juveniles still do not have right to trial by jury

1984, Schull v. Martin Court ruled that due
process for juveniles does not include the right
to be released from custody while they are
awaiting trial.
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Summarizing What is procedural due process?
Answer(s) TBA in class.
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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.
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Simulation (contd.)

• Roles
• Chief justice of the United States
• Associate justices
• Attorneys for the defendant
• Attorneys for the plaintiff
• Attorneys for the American Center for Civil
  Justice (ACCJ)
• Attorneys for Terrorism Victims and Survivors for
  Justice (TVSJ)

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Simulation (contd.)

• The Situation
• Number of people suspected of plotting, having
  committed terrorist acts against United States
  imprisoned at U.S. military base in another
  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

89
Simulation (contd.)

• Oral Arguments
• Attorneys for both plaintiff, defendant will
  present oral arguments to Supreme Court
• Plaintiffs argument presented first, followed by
  defendants
• 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

90
Simulation (contd.)
Debriefing Those who would give up essential
liberty to purchase a little temporary safety,
deserve neither Liberty nor Safety, is a quote
attributed to Benjamin Franklin. Use what you
have learned about due process to discuss the
trade-off between liberty and safety today.
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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.

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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.
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Treaties and States Rights
Hunting and fishing are typically regulated by
state governments. Should the federal government
have any power over state-regulated activities,
such as restricting the hunting of certain
animals within a states borders?
95
Treaties and States Rights (contd.)

• Court Hears Missouri v. Holland
• Feds argued Constitution gave president power to
  make treaties
• Noted supremacy clause making federal laws,
  treaties the supreme law of the land
• Missouri argued Bird Treaty Act unconstitutional
  intrusion into Missouris sovereignty, Congress
  should not be able to use treaty power to pass
  law that would be unconstitutional if passed
  directly

• Hollands 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
  ones property

Holland clarified and expanded the limits of
federal power to conduct international relations.
Other cases since have continued to expand
authority over state laws when the nation is
dealing with international issues.
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WHAT DO YOU THINK?
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.
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Expanding Federal Authority

• Commerce Clause of Constitution
• Congress has power to regulate commerce with
  foreign nations, the states, Indian tribes
• Congresss use of clause, Supreme Courts
  interpretation of it, has significantly defined
  balance of power between national government,
  states, helped shape American life
• Use of power
• Congress has tried to use power to regulate
  commerce to end racial discrimination in United
  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

98
Identifying the Main Idea What part of the
Constitution has had the greatest impact on
changing the Constitutional system of federalism?
Answer(s) TBA in class.
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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

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• The Arguments
• Lopezs attorneys said having gun at school may
  be criminal offense, but federal law was
  unconstitutional exercise of Congresss power to
  regulate interstate commerce
• Government argued guns in school zones could lead
  to violent crime, making people afraid to travel
  in the area fear of violent crime might
  interfere with students learning both could
  affect the economy

• The Courts Ruling
• 1995, United States v. Lopez Court ruled 54
  that Gun-Free School Zones Act unconstitutional
• Possession of gun in local school zone not
  economic activity, would not affect any sort of
  interstate commerce
• Lopez first case to limit Congresss use of
  commerce clause since 1930s
• Court had duty to prevent federal government from
  further expanding powers to regulate conduct of a
  states citizens

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(No Transcript)
102
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 Raichs pain so severe, she could die
  without marijuana to relieve it

• 2002 federal authorities seized and destroyed
  six marijuana plants grown by Monson
• Monson, Raich sued federal government

• Court of appeals ruled feds had no right to
  interfere with right to grow, use marijuana under
  California law
• Government appealed decision to Supreme Court

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The Arguments

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

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The Raich Decision

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

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106
Summarizing How did Justice OConnor think the
decision in Gonzales v. Raich affected federalism?
Answer(s) TBA in class.
107
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.
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Simulation (contd.)

• Roles
• Chief justice
• Associate justices
• Attorneys for plaintiff, Native American Nation
• Attorneys for defendant, the State
• Attorneys for the National Native American
  Council, a Native American civil rights group
• Attorneys for the American Association for Family
  Values, a group that opposes casinos and gambling

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Simulation (contd.)

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

110
Simulation (contd.)

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

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