Cases,
Cases and
More Cases!
Cases, Cases and More Cases!
MIDDLE SCHOOL
Marbury v. Madison ........................................................................... 4
McCulloch v. Maryland ...................................................................... 6
Gibbons v. Ogden ............................................................................. 9
Worcester v. Georgia ........................................................................ 11
Dred Scott v. Sanford ........................................................................ 13
HIGH SCHOOL
AMERICAN HISTORY
Plessy v. Ferguson ............................................................................ 16
Mendez v. Westminster ..................................................................... 18
Delgado v. Bastrop ISD ..................................................................... 20
Sweatt v. Painter ............................................................................... 23
Brown v. Board of Education ............................................................. 26
Hernandez v. Texas .......................................................................... 28
White v. Regester .............................................................................. 30
Edgewood ISD v. Kirby ..................................................................... 32
Tinker v. Des Moines School District ................................................. 34
Wisconsin v. Yoder............................................................................ 36
GOVERNMENT
Grutter v. Bollinger ............................................................................ 39
Baker v. Carr ..................................................................................... 41
Engel v. Vitale ................................................................................... 44
Gideon v. Wainwright ........................................................................ 46
Mapp v. Ohio ..................................................................................... 48
Miranda v. Arizona ............................................................................ 51
Roe v. Wade ..................................................................................... 54
Schenck v. United States .................................................................. 57
Texas v. Johnson .............................................................................. 59
2
Cases, Cases and More Cases!
MIDDLE SCHOOL CASES
3
Marbury v Madison
5 U. S. (1 Cranch) 137 (1803)
The Federalist Party under George Washington and John Adams had controlled all three
branches of the new government of the U. S. since the new U. S. Constitution had taken
effect in 1788.The elections of November, 1800, however, proved to be a disaster for the
Federalist Party. The party‘s candidate for President, the incumbent John Adams, was
defeated, and Thomas Jefferson‘s Republican Party for the first time also won control of
both houses of Congress.
At this time in the U. S., however, those defeated, as well as those elected, in November did
not leave office, or take office, until the following March. In this so-called ―lame duck‖ period,
the Federalists, therefore, did several things in order to maintain their voice in American
government when March came. First, in February, 1801, the Federalist controlled Congress
passed the Circuit Court Act of 1801 which increased the number of federal judges by
creating circuit courts. President Adams appointed Federalists to fill these new judgeships,
and the Federalist controlled Senate approved the appointments. Second, Oliver Ellsworth,
the elderly Federalist Chief Justice of the U. S., retired, thus allowing President Adams to
name a new Chief Justice. He appointed the young Federalist John Marshall, his Secretary
of State, who continued to serve in that position also until Adams left office in March. Third,
the Federalist Congress passed a law creating 42 new Justice of the Peace positions for the
District of Columbia. President Adams immediately appointed Federalists to these positions
as well, and the Federalist Senate approved the appointments on March 3. Adams stayed
up until midnight of his last day in office signing commissions for these appointees. As
Secretary of State, John Marshall affixed the seal of the U. S. to these commissions and
then undertook to deliver the commissions to the appointees. However, Adams‘ term as
President expired before all of the commissions could be delivered. Four undelivered
commissions were returned to the Secretary of State‘s office.
When the new President, Thomas Jefferson, discovered that the commissions had not been
delivered, he directed his new Secretary of State, James Madison, not to deliver them. One
of the undelivered commissions would have made William Marbury a Justice of the Peace
for the District of Columbia. Marbury decided to bring legal action and hired Charles Lee, a
former U. S. Attorney General, to be his attorney. Using Section 13 of the Judiciary Act of
1789, Lee filed Marbury‘s suit directly with the Supreme Court under its original jurisdiction.
Part of Section 13 authorized the Supreme Court to issue ―writs of mandamus, in cases
warranted by the principles and usages of law, to any courts appointed, or persons holding
office, under the authority of the United States.‖
Issues: (1) Does Marbury have a right to his commission as a Justice of
the Peace for the District of Columbia? (2) If he has that right, and that
right has been violated, do the laws of the U. S. afford him a remedy? (3) If
the laws of the U. S. do afford him a remedy, is that remedy a writ of
mandamus issued by this Court?
4
Marbury v Madison
Decision
Chief Justice John Marshall himself wrote the opinion of the Court announcing the decision
for a unanimous Court. Marshall begins his opinion by seeming to lecture President
Jefferson and Secretary of State Madison, telling them that they know Marbury is entitled to
his job. In other words, the Court reasons, the answer to the first question is ―Yes.‖ He then
reminds everyone that every individual must be able to claim the protection of the law when
that individual‘s rights have been violated. The law, Marshall states, must provide a remedy
for the violation because if it does not, then the U. S. is not a government of laws as we
have claimed. One of the first duties of government, he asserts, is providing a remedy for a
violation of rights. The Court thus answers ―Yes‖ to the second question. Thus far in his
opinion, it appears that the Court is ruling for Marbury.
Marshall now turns to answer the third and most important question, and in the process, the
Court decides something that no one had even argued or knew was involved. He begins by
reminding everyone that the Constitution is not only law but also that it is the supreme law of
the land according to Article VI, Paragraph 2 and that it cannot be changed merely by an act
of Congress. Then he notes that an act of the legislative branch contrary to the Constitution
is void and that judges take an oath to recognize, interpret, and enforce the Constitution.
Article III of the Constitution, Marshall correctly points out, specifically spells out the
Supreme Court‘s original jurisdiction, limiting it to ―cases affecting ambassadors, other public
ministers and consuls, and those in which a state shall be party.‖ Section 13 of the Judiciary
Act of 1789, he asserts, under which Marbury‘s case was brought directly to the Supreme
Court under its original jurisdiction, adds to the Court‘s original jurisdiction and is therefore in
conflict with Article III of the Constitution. Consequently, Marshall concludes, according to
Article VI, Paragraph 2, Section 13 is unconstitutional. As a result, he adds, the Supreme
Court does not have jurisdiction over the case, and without jurisdiction, no court can hear
and decide a case. In what thus amounts to the Court‘s only legally binding decision, the
Court dismisses Marbury‘s case. In other words, the answer to the third question is ―No.‖ In
the process of answering this third question, Marshall spells out what may well be the most
significant outcome of the case: ―It is emphatically, the province and duty of the judicial
department, to say what the law is.‖
5
McCulloch v Maryland
17 U. S. 316 (1819)
In 1790, Alexander Hamilton, the first Secretary of the Treasury, recommended that
Congress charter a Bank of the U. S., and in 1791 Congress did so. Hamilton argued that
Congress‘ constitutional power to create the bank resulted from certain powers delegated to
Congress in Article I, Section 8 such as the power ―to coin money and regulate the value
thereof‖ when combined with the power given Congress in the 18th paragraph of Section 8
―to make all laws necessary and proper for carrying into execution the foregoing powers.‖
Secretary of State Thomas Jefferson argued, on the other hand, that Congress did not have
the power under the Constitution to create a bank since nowhere in Article I, Section 8 is
such a power granted Congress. Therefore, Jefferson said, under the Tenth Amendment,
that power belongs only to the states.
The charter of the First Bank of the U. S. was allowed to expire, but in 1816 Congress
chartered the Second Bank of the U. S. The largest branch of this bank was located in
Baltimore, Maryland. Like Thomas Jefferson at an earlier time, Maryland did not believe that
the U. S. Congress had the power under the Constitution to create a bank, and therefore,
Maryland decided to drive the Bank of the U. S. in Baltimore out of business. In 1818 the
Maryland Legislature passed a statute which taxed all banks operating in the state that were
not chartered by the state, namely the branch of the Second Bank of the U. S. in Baltimore.
The statute levied a tax of approximately 2% on the value of all notes issued by the Bank, or
a flat annual fee of $15,000. James McCulloch, the Chief Cashier of the Baltimore branch,
refused to pay the tax. The state of Maryland brought suit against McCulloch. After the
highest state court in Maryland ruled that McCulloch had to pay the tax, McCulloch appealed
to the U. S. Supreme Court.
Issues: (1) Under the U. S. Constitution, does the U. S. Congress have the
power to create a bank? (2) May a state tax an agency of the U. S.
government?
6
McCulloch v Maryland
Decision
Chief Justice John Marshall wrote the opinion for a unanimous Court which ruled that
Congress did have the power under the Constitution to charter the bank. Marshall began by
noting: ―This government is acknowledged by all to be one of enumerated powers. The
principle, that it can exercise only the powers granted to it, … is now universally admitted.
But the question respecting the extent of the powers actually granted, is perpetually arising,
and will probably continue to arise, as long as our system shall exist.‖ He then
acknowledges that ―among the enumerated powers, we do not find that of establishing a
bank or creating a corporation. But there is no phrase in the instrument which, … excludes
incidental or implied powers; and which requires that everything granted shall be expressly
and minutely described.‖
Speaking next of what a constitution should do, he writes: ―A constitution, to contain an
accurate detail of all the subdivisions of which its great powers will admit, and of all the
means by which they may be carried into execution, … could scarcely be embraced by the
human mind. … Its nature, therefore, requires that only its great outlines should be marked,
its important objects designated, and the minor ingredients which compose those objects be
deduced from the nature of the objects themselves. … We must never forget that it is a
constitution we are expounding.”
Marshall then addresses specifically the question of whether the Constitution authorizes
Congress to create a bank. He writes: ―Although, among the enumerated powers of
government, we do not find the word ‗bank‘ or ‗incorporation,‘ we find the great powers to lay
and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war;
and to raise and support armies and navies.‖ He quickly adds: ―… It may with great reason
be contended, that a government, entrusted with such ample powers, on the due execution
of which the happiness and prosperity of the nation so vitally depends, must also be
entrusted with ample means for their execution.‖ He also accurately points out that ―the
Constitution of the United States has not left the right of Congress to employ the necessary
means for the execution of the powers conferred on the government to general reasoning‖
because, as he notes, ―to its enumeration of powers is added that of making ‗all laws which
shall be necessary and proper, for carrying into execution the foregoing powers…‘‖ Still
speaking of this language of the Constitution, Marshall writes: “This provision is made in a
constitution intended to endure for ages to come, and, consequently, to be adapted to
the various crises of human affairs. To have prescribed the means by which
government should, in all future time, execute its powers, would have been to
change, entirely, the character of the instrument, and give it the properties of a legal
code.‖
Marshall concludes the Court‘s reasoning relative to the first question the Court has
answered with the following: ―We admit, as all must admit, that the powers of the
government are limited, and that its limits are not to be transcended. But we think the sound
construction of the Constitution must allow to the national government that discretion, with
respect to the means by which the powers it confers are to be carried into execution, which
7
will enable that body to perform the high duties assigned to it, in the manner most beneficial
to the people. Let the end be legitimate, let it be within the scope of the Constitution,
and all means which are appropriate, which are plainly adapted to that end, which are
not prohibited, but consist with the letter and spirit of the Constitution, are
constitutional.” Having outlined the Court‘s reasons for its decision, Marshall now
announces: ―After the most deliberate consideration, it is the unanimous and decided
opinion of this Court that the act to incorporate the bank of the United States is a law made
in pursuance of the Constitution, and is a part of the supreme law of the land.‖
In the last part of his opinion, Marshall addresses the second question: whether a state can
tax an institution of the national government. He begins with this reminder: ―The Constitution
and the laws made in pursuance thereof are supreme; … they control the constitution and
laws of the respective states and cannot be controlled by them.‖ He then makes very clear
the Court‘s position relative to this second question: “That the power to tax involves the
power to destroy; that the power to destroy may defeat and render useless the power
to create … are propositions not to be denied. … If the states may tax one instrument,
employed by the government in the execution of its powers, they may tax any and
every other instrument. … The states have no power, by taxation or otherwise, to
retard, impede, burden, or in any manner control the operations of the constitutional
laws enacted by Congress to carry into execution the powers vested in the general
government. … We are unanimously of opinion that the law passed by the legislature of
Maryland, imposing a tax on the Bank of the United States, is unconstitutional and void.‖
8
Gibbons v Ogden
22 U. S. (9 Wheat.) 1824
The New York Legislature in 1808 granted Robert Livingston and Robert Fulton a twenty
year monopoly to operate steamboats in New York waters. In 1811 Fulton in turn granted
Aaron Ogden a license to operate steamboats between New York and New Jersey. In 1818
the U. S. Congress, using the power given it by the commerce clause of Article I, Section 8
of the Constitution, granted Thomas Gibbons a license to engage in the coastal trade and
operate steamboats between New York and New Jersey. Claiming that his monopoly rights
were being violated, Ogden obtained an injunction from a New York court forbidding
Gibbons from continuing to operate his steamboats in these waters. After obtaining the
services of Daniel Webster as his lawyer, Gibbons appealed to the U. S. Supreme Court.
For five days in 1824, the Court, presided over by Chief Justice John Marshall, heard
arguments in the case.
Issue: What is the extent of Congress’ power under that part of Article I,
Section 8 of the U. S. Constitution which provides that “Congress shall
have the power to regulate commerce with foreign nations and among the
several states and with the Indian tribes?”
9
Gibbons v Ogden
Decision
Speaking through Chief Justice John Marshall, the Court unanimously ruled in Gibbons‘
favor and in so doing broadly interpreted Congress‘ power under the commerce clause.
Marshall began his opinion for the Court by rejecting the argument that the powers given
Congress by the Constitution should be interpreted strictly. Next, he turned his attention to
the meaning of the word ―commerce.‖ Ogden‘s attorney had attempted to limit it only to
―traffic, to buying and selling, or the interchange of commodities‖ and had argued that it did
not include navigation. Marshall responded as follows: ―Commerce, undoubtedly, is traffic,
but it is something more…all America understands, and has uniformly understood, the word
‗commerce‘ to comprehend navigation. It was so understood, and must have been so
understood, when the Constitution was framed.‖
Marshall then addressed the meaning of the word ―among‖ in the commerce clause: ―The
word ‗among‘ means intermingled with. A thing which is among others, is intermingled with
them. Commerce among the states cannot stop at the external boundary line of each state,
but may be introduced into the interior. … Comprehensive as the word ‗among‘ is, it may
very properly be restricted to that commerce which concerns more states than one.‖
Next, speaking of what Congress‘ power under the commerce clause actually is, Marshall
and the Court interpreted Congress‘ power as broadly as it can be interpreted when he
wrote: ―It is the power to regulate; that is, to prescribe the rule by which commerce is to be
governed. This power, like all others vested in Congress, is complete in itself, may be
exercised to its utmost extent, and acknowledges no limitations, other than are
prescribed in the Constitution.”
The last question which the Court had to answer, Marshall writes, is: ―Can a state regulate
commerce with foreign nations and among the states, while Congress is regulating it?‖ He
notes that it had been argued that if a state law came ―into conflict with a law passed by
Congress in pursuance of the Constitution, they affect the subject, and each other, like equal
opposing powers.‖ To that argument, Marshall responds: ―But the framers of our Constitution
foresaw this state of things, and provided for it, by declaring the supremacy not only of itself,
but of the laws made in pursuance of it. … In every such case, the act of Congress, or the
treaty, is supreme; and the law of the state, though enacted in the exercise of powers not
controverted, must yield to it.‖
10
Worcester v Georgia
31 U. S. 515 (1832)
In December, 1829, President Andrew Jackson announced his Indian removal proposal in
an address to the U. S. Congress. In 1830, the Congress passed the Indian Removal Act
which authorized the President to grant the Indians unsettled lands west of the Mississippi
River in exchange for Indian lands within existing state borders. The U. S. Supreme Court
under Chief Justice John Marshall addressed the Indian lands question in two cases:
Cherokee Nation v Georgia in 1831 and Worcester v Georgia in 1832. Both cases
developed out of Georgia‘s attempt to assert its jurisdiction over Cherokee land within the
state that was protected by federal treaty. In the first case, Cherokee Nation v Georgia, the
Supreme Court ruled that it had no jurisdiction to hear the Cherokee request to prevent
Georgia‘s attempt. The Court determined that the Cherokees were ―a domestic, dependent
nation‖ (in other words, a ward of the United States), rather than ―a sovereign nation.‖ By
refusing to hear the case, the Court left the Cherokees at the mercy of the land-hungry state
of Georgia.
The Georgia Legislature meanwhile had passed a law requiring anyone other than
Cherokees who lived on Indian territory to obtain a license from the state. Samuel Worcester
and several other non-Cherokee Congregational missionaries settled and established a
mission on Cherokee land at the request of the Cherokees and with permission of the United
States government. The state of Georgia charged them with ―residing within the limits of the
Cherokee nation without a license.‖ They were tried, convicted, and sentenced to four years
of hard labor. Worcester and the other missionaries appealed their convictions to the U. S.
Supreme Court.
Issue: Does a state have the power to pass laws concerning sovereign
Indian nations?
11
Worcester v Georgia
Decision
Speaking through Chief Justice John Marshall, the Supreme Court, with only one justice
dissenting, ruled in favor of Worcester and the Cherokees. The Court reasoned that the
Cherokee nation was ―a distinct community‖ with ―self-government‖ in which the laws of
Georgia had no force. Marshall explains that the government of the United States inherited
from Great Britain the powers that that nation formerly held, including the sole power to deal
with the Indian nations. He writes: ―From the commencement of our government, Congress
has passed acts to regulate trade … with the Indians; which treat them as nations, respect
their rights, and manifest a firm purpose to afford that protection which treaties stipulate. All
these acts … manifestly consider the several Indian nations as distinct political communities,
having territorial boundaries , within which their authority is exclusive, and having a right to
all the lands within those boundaries, which is not only acknowledged, but guaranteed by
the United States …‖
Marshall goes on to write that the citizens of Georgia have no right to enter Cherokee land
―but with the assent of the Cherokees themselves, or in conformity with treaties, and with the
acts of Congress. The whole intercourse between the United States and this nation, is, by
our Constitution and laws, vested in the government of the United States.‖ Therefore, the
Chief Justice concludes, ―the acts of Georgia are repugnant to the Constitution, laws, and
treaties of the United States.‖
12
Dred Scott v Sandford*
60 U. S. 393 (1857)
*Sanford’s name was misspelled in the official Supreme Court records.
In 1820 the U. S. Congress passed the Missouri Compromise which admitted Maine to the
Union as a free state, Missouri as a slave state, and made Missouri‘s southern border, the
36 degrees 30 minutes parallel, the boundary north of which slavery would not be allowed
within the Louisiana Purchase. Dred Scott was born a slave in Virginia sometime in the late
18th or early 19th century. In 1830, his owner moved to Missouri (a slave state) and brought
Dred Scott with him. In 1833 he was sold to an army surgeon, Dr. John Emerson, who later
moved first to Illinois (a free state) and then to Wisconsin Territory, and both times he took
Dred Scott with him. Emerson returned with Scott to Missouri in 1838. Scott thus had been
held as a slave in a free state and then in an area where slavery was outlawed by the
Missouri Compromise. Emerson died in 1843 and in his will left Scott to his widow, the
former Irene Sanford whose brother was the executor of Emerson‘s will. In 1846, Dred Scott
and his wife Harriet filed a petition in a Missouri court requesting permission to file suit in
order to establish their right to be freed since they had resided on free soil. After two trials
and the Scotts temporarily winning their freedom, the Missouri Supreme Court in 1852
reversed the lower court‘s verdict and held that it would not enforce the antislavery laws of
other states and that the Scotts‘ residence on free soil had not changed their status as
slaves. The Scotts then brought suit in a U. S. Circuit Court where the verdict once more
was that they were still slaves. The case was now appealed to the U. S. Supreme Court
where it was argued in early 1856 and then reargued in late 1856.
ISSUES: (1) Is a slave a citizen and thus able to bring suit in a federal
court? (2) Is a slave who has resided on free soil therefore freed? (3) Did
the U. S. Congress have the power to outlaw slavery in new states or in a
territory?
13
Dred Scott v Sandford
Decision
Seven Justices of the U. S. Supreme Court concluded that Dred Scott and his wife remained
slaves, while two felt that they were legally entitled to their freedom. Except for one Justice
in the majority who was simply content with a brief note that he concurred with the thinking
of the majority, each of the other six Justices in the majority felt compelled to write separate
opinions.
Chief Justice Roger Taney, however, wrote the most important opinion for the majority.
Taney initially addressed the question of whether Dred Scott was a citizen and therefore
entitled to bring suit in a federal court: ―The question is simply this: can a Negro, whose
ancestors were imported into this country and sold as slaves, become a member of the
political community formed and brought into existence by the Constitution of the United
States, and as such become entitled to all the rights, and privileges, and immunities,
guaranteed by that instrument to the citizen. One of these rights is the privilege of suing in a
court of the United States… The words ‗people of the United States‘ and ‗citizens‘ are
synonymous terms, and mean the same thing.‖ Taney then writes that the question the
Court must answer is whether the Scotts are a part of ―the people.‖ The answer, he states,
is: ―We think they are not, and that they are not included, and were not intended to be
included, under the word ‗citizens‘ in the Constitution, and can, therefore, claim none of the
rights and privileges which that instrument provides for and secures to citizens of the United
States. On the contrary, they were at that time considered as a subordinate and inferior
class of beings, who had been subjugated by the dominant race, and whether emancipated
or not, yet remained subject to their authority, and had no rights or privileges but such as
those who held the power and the government might choose to grant them.‖
Taney next turned to the question of whether Dred Scott remained a slave after residing on
free soil. Relative to this question, Taney wrote: ―…it is the opinion of the court that the Act
of Congress which prohibited a citizen from holding and owning property of this kind in the
territory of the United States north of the line therein mentioned, is not warranted by the
Constitution, and is therefore void; and that neither Dred Scott himself, nor any of his family,
were made free by being carried into this territory; even if they had been carried there by the
owner, with the intention of becoming a permanent resident…‖ Furthermore, Taney
asserted, because ―Scott was a slave when taken into the state of Illinois by his owner, and
was there held as such, and brought back in that character, his status, as free or slave
depended on the laws of Missouri, and not of Illinois.‖
14
Cases, Cases and More Cases!
HIGH SCHOOL
AMERICAN HISTORY
15
Plessy v Ferguson
163 U. S. 527 (1896)
In1890 the Louisiana Legislature passed the Separate Car Act which required railroads
―to provide equal but separate accommodations for the white and colored races‖ in
order to protect the safety and comfort of all passengers. In 1891, in New Orleans a
group of African American and Creole doctors, lawyers, and businessmen formed the
―Citizens Committee to Test the Constitutionality of the Separate Car Law.‖ The
committee chose Homer Plessy, who was one-eighth black, to test the law by violating
it. On June 7, 1892, he bought a first-class ticket on the East Louisiana Railway that
traveled from New Orleans to Covington, Louisiana. He boarded the train, walked past
the coach clearly marked ―For Coloreds Only,‖ and took a seat in the coach clearly
marked ―For Whites Only.‖ He informed the conductor of his racial background. When
the train conductor asked Plessy to move to the other coach, he refused and was
arrested. He was charged with violation of the Separate Car Law, tried in a Criminal
District Court for the Parish of Orleans, found guilty, and sentenced to jail. He
appealed his conviction to the Louisiana Supreme Court which upheld the law and
Plessy‘s conviction. Plessy and his lawyers then appealed to the U. S. Supreme Court.
Issue: Does a state law which requires “equal but separate” railway
accommodations for African Americans and whites violate either the
Thirteenth Amendment’s prohibition of slavery or the Fourteenth
Amendment’s equal protection of the laws clause?
16
Plessy v Ferguson
Decision
By a 7-1 vote with one Justice not participating, the Supreme Court upheld the Louisiana law
and thus Homer Plessy‘s conviction for having violated it. Justice Henry Brown wrote the
opinion of the Court. Brown first addresses the question of whether the Separate Car Act
violated the Thirteenth Amendment and dismisses it very quickly: ―A statute which implies
merely a legal distinction between the white and colored races – a distinction which is
founded in the color of the two races and which must always exist so long as white men are
distinguished from the other race by color – has no tendency to destroy the legal equality of
the two races, or reestablish a state of involuntary servitude.‖
Brown then turns to the question of whether the Louisiana law violated the equal protection of
the laws guarantee of the Fourteenth Amendment. He writes: ―The object was undoubtedly to
enforce the absolute equality of the two races before the law, but, in the nature of things, it
could not have been intended to abolish distinctions based upon color, or to enforce social, as
distinguished from political, equality, or a commingling of the two races upon terms
unsatisfactory to either. Laws permitting, and even requiring, their separation in places where
they are liable to be brought into contact do not necessarily imply the inferiority of either race
to the other …‖
Brown concludes with these remarks: ―We consider the underlying fallacy of the plaintiff‘s
argument to consist in the assumption that the enforced separation of the two races stamps
the colored race with a badge of inferiority. If this be so, it is not by reason of anything found
in the act, but solely because the colored race chooses to put that construction upon it. …
The argument also assumes that … equal rights cannot be secured to the Negro except by
an enforced commingling of the two races. We cannot accept this proposition. If the two races
are to meet upon terms of social equality, it must be the result of natural affinities, a mutual
appreciation of each other‘s merits, and a voluntary consent of individuals.‖
Justice John Marshall Harlan I dissented alone in one of his most famous opinions: ―In
respect of civil rights, common to all citizens, the Constitution of the United States does not, I
think, permit any public authority to know the race of those entitled to be protected in the
enjoyment of such rights. … Everyone knows that the statute in question had its origin in the
purpose not so much to exclude white persons from railroad cars occupied by blacks as to
exclude colored people from coaches occupied by or assigned to white persons. …‖
Harlan concludes with some of the most famous remarks ever written by any member of the
nation‘s highest Court: ―In view of the Constitution, in the eye of the law, there is in this
country no superior, dominant, ruling class of citizens. There is no caste here. Our
Constitution is color-blind, and neither knows nor tolerates classes among citizens. In
respect of civil rights, all citizens are equal before the law. The humblest is the peer of the
most powerful. The law regards man as man, and takes no account of his surroundings or of
his color when his civil rights as guaranteed by the supreme law of the land are involved. …
The thin disguise of ‗equal‘ accommodations for passengers in railroad coaches will not
mislead anyone, nor atone for the wrong this day done.‖
17
Mendez v Westminster School District of Orange County
64 F. Supp. 544 (C. D. Cal. 1946)
Westminster School District of Orange County v Mendez
161 F.2d 774 (9th Cir. 1947)
Gonzalo Mendez was born in Mexico in 1913. He, his mother, and her other four children
moved to Westminster, California, in 1919. When he was 30 years old in 1943, he became
a naturalized citizen of the U. S. and was a relatively well-off vegetable farmer. By this time,
Gonzalo and his wife had three children who grew up speaking English as well as Spanish,
and in fact, the family spoke more English than they did Spanish when at home. In the
neighborhood where the Mendez family lived, there was only one other Mexican American
family. The other neighbors were all Anglos, and all of their children attended Westminster
Main School.
In 1945, when his children went to register for school, Gonzalo expected that they would be
attending Westminster Main School, the same school which he had attended with other
Mexican and Anglo children when he was young until he was forced to drop out to help
support his family. Much to his surprise, when his children returned home, they informed
him that they would have to attend the Hoover School which was located in a different
school district, and furthermore, all of the students there were Mexican or Mexican
American. Gonzalo spoke with the principal, the Westminster School Board, and eventually
the Orange County School Board, but without success.
With the aid of his lawyer, Gonzalo discovered that other school districts in Orange County
also segregated their Mexican American students. On March 2, 1945, the attorney
representing Mendez and the other plaintiffs filed a class action suit in a U. S. District Court
not only on their behalf but also on behalf of some 5,000 other persons of ―Mexican and
Latin descent.‖ The defendants were four school districts, their superintendents, and their
school boards. The plaintiffs argued that their children had been arbitrarily assigned to
attend schools ―reserved for and attended solely and exclusively by children … of Mexican
and Latin descent‖ while other schools in the same system were ―reserved solely and
exclusively for children known as white or Anglo-Saxon children.‖ When there was no state
law mandating their segregation, they argued that segregating children of Mexican ancestry
was a violation of the equal protection of the laws clause of the Fourteenth Amendment.
The attorney did not argue that the school districts were segregating on the basis of race. In
fact, he argued, there was no ―racial‖ segregation because ―Mexicans were members of the
white race.‖ The attorney knew that he could not argue that segregation based on race was
unconstitutional since the U. S. Supreme Court in Plessy v Ferguson in 1896 had upheld
racial segregation. The case was assigned to U. S. District Court Judge Paul McCormick.
Issue: Does the segregation of Mexican American public school children
in the absence of a state law mandating their segregation violate
California law as well as the equal protection of the laws clause of the
Fourteenth Amendment to the U. S. Constitution?
18
Mendez v Westminster School District of Orange County
64 F. Supp. 544 (C. D. Cal. 1946)
Westminster School District of Orange County v Mendez
161 F.2d 774 (9th Cir. 1947)
Decision
Judge McCormick ruled first of all that the segregation violated California‘s own laws,
but then he went on, in the words of Professor Philippa Strum, ―to suggest a new
interpretation of the federal equal protection clause.‖ McCormick wrote: ―A paramount
requisite in the American system of public education is social equality. It must be open
to all children by unified school association regardless of lineage.‖ As Professor Strum
notes, ―That, simply stated, was a declaration that ‗separate but equal‘ was not equal.‖
Before Judge McCormick‘s decision was appealed to the U. S. Court of Appeals for the
9th Circuit in San Francisco, the different school districts involved in the litigation
reacted in different ways. Westminster integrated its elementary schools for the 19461947 school year by placing grades 1-4 in Westminster Main and grades 5-8 in
Hoover. Finally, the Mendez children were able to attend Westminster Main.
In April, 1947, the U. S. Court of Appeals handed down a unanimous decision. While
the Court of Appeals upheld Judge McCormick‘s judgment, it did so only on the basis
that the segregation violated California law. The Court‘s opinion noted that the U. S.
Supreme Court‘s segregation decisions were not controlling in this case since there
was no state law mandating segregation of Mexican American children, and there were
such state laws in the litigation decided by the nation‘s highest Court. As Professor
Strum indicates, ―The Court of Appeals was only willing to say that Mexican American
children could not be segregated because the legislature had not decided that sending
them to separate schools was state policy.‖
The school districts involved chose not to pursue an appeal to the U. S. Supreme
Court.
Sources: For a full and complete treatment of this case see Philippa Strum.
Mendez v Westminster: School Desegregation and Mexican American Rights.
University Press of Kansas, 2010. ISBN 978-0-7006-1719-7. Also, see Neil Foley.
Quest for Equality: The Failed Promise of Black-Brown Solidarity. Harvard
University Press, 2010. ISBN 978-0-674-05023-5.
19
Delgado, et. al. v Bastrop Independent School District, et. al.
United States District Court for the Western District of Texas
No. 388 W. D. Tex (1948)
In 1930 in Salvatierra v Del Rio Independent School District, the League of United Latin
American Citizens (LULAC) filed suit in a Texas District Court on behalf of the parents of
Mexican American children attending public school in Del Rio, Texas. The school district
sold a municipal bond to allow it to add some rooms and an auditorium to an elementary
school attended only by Mexican American children in grades one through three. The
Mexican American parents believed that the district‘s action made it clear that their children
in those grades would be permanently segregated. Representing the parents, LULAC‘s
attorneys did not argue about the differences in the facilities for Anglo and Mexican
American students. Instead, they argued that the segregation itself was illegal. At the time,
Texas law required ―separate but equal‖ schools for Anglos and African Americans but not
for Mexican Americans. The Superintendent of the Del Rio Independent School District
testified that the separate school for these Mexican American children was for their benefit
because of their poor attendance records and poor English language skills. The
Superintendent thus asserted that the motive was not ―segregation by reason of race or
color.‖ District Court Judge Joseph Jones ruled that the Mexican American children were
entitled to go to school with the Anglo children. The case was then appealed to the Texas
Court of Civil Appeals which overturned Judge Jones‘ ruling. The Court of Civil Appeals held
that public schools could not segregate Mexican American children because of their
ethnicity but that it was the duty of school personnel to ―classify and group the pupils so as
to bring to each one the greatest benefits according to his or her individual needs and
aptitudes.‖ In other words, the Del Rio ISD was allowed to continue segregating these
Mexican American children so long as it was not being done for reasons of race or color.
Salvatierra asked the U. S. Supreme Court to review the Court of Civil Appeals‘ judgment,
but the Court declined to do so.
In 1946, a case similar to the Salvatierra case was heard and decided in the federal courts
of California. In Mendez v Westminster, a U. S. District Court judge ruled that segregating
Mexican American children in the public schools violated not only California law but also the
equal protection of the laws clause of the Fourteenth Amendment to the U. S. Constitution.
On appeal, the U. S. Court of Appeals for the Ninth Circuit in 1947 in Westminster v Mendez
upheld the judgment of the lower court but only on the basis that the segregation violated
California law.
According to some sources, in Texas in the 1940s, separate public schools for some
Mexican American students were maintained in 122 school districts in 59 Texas counties.
(See Jorge Rangel and Carlos Alcala, ―Project Report: De Jure Segregation of Chicanos in
Texas Schools,‖ Harvard Civil Rights-Civil Liberties Law Review 7, March, 1972, 314.) The
outcome of the Mendez case in California prompted Mexican American civil rights activists
in Texas, including LULAC leaders, Mexican American attorney Gus Garcia, and University
of Texas Professor George Sanchez, to prepare the first school segregation case in Texas
since the 1930 Salvatierra case. In 1948, with the support of LULAC and the legal
20
assistance of Gus Garcia, Minerva Delgado and twenty other parents of Mexican American
children filed suit in U. S. District Court for the Western District of Texas challenging the
segregation of their children in five Texas public school districts. Thus began the case of
Delgado, et. al. v Bastrop Independent School District, et. al. In their complaint for the
Mexican American parents, the attorneys argued that the school districts had ―prohibited,
barred, and excluded ― Mexican American children from attending public school with ―other
white school children‖ in violation of the equal protection of the laws guaranteed by the U. S.
Constitution‘s Fourteenth Amendment.
ISSUE: Does a public school district which maintains separate schools for
Anglo and Mexican American students in the absence of a state law
requiring such violate the equal protection of the laws clause of the U. S.
Constitution’s Fourteenth Amendment?
21
Delgado, et. al. v Bastrop Independent School District, et. al.
Decision
Judge Ben Rice agreed that segregation of Mexican American students was not authorized
by Texas law and violated the equal protection of the laws clause of the Fourteenth
Amendment. Judge Rice issued an injunction against the state and the school districts
forbidding further segregation of students of ―Mexican or Latin descent.‖ The decision, of
course, left in place the legal segregation of African American students which was
specifically allowed under Texas law. Furthermore, the judge‘s decision did allow school
districts to provide separate first-grade classes for ―language-deficient students who were
identified by scientifically standardized tests.‖ As Professor Neil Foley in his Quest for
Equality: The Failed Promise of Black-Brown Solidarity notes, ―The Delgado case did little
to end segregation because it was still legal to separate Mexicans from Anglos for language
deficiency …‖ That same argument is made by Professor Paul Sracic in his San Antonio v
Rodriguez and the Pursuit of Equal Education who writes: ―According to most scholars of
Mexican American school segregation in Texas, Delgado and other similar cases had little
impact on what was actually happening in the schools.‖
22
Sweatt v Painter
339 U. S. 629 (1950)
In 1946, Heman Sweatt, a 33 year-old African American mail carrier from Houston, Texas,
who wanted to be a lawyer appeared on the campus of the University of Texas at Austin. He
presented the President of the University, Theophilus Painter, with a copy of his
undergraduate transcript from Wiley College and formally applied for admission to the
University‘s Law School. He asserted that he had a right to the same legal training as any
other Texan who was a college graduate and that since Texas did not have a law school for
African Americans, the state had to admit him to the University of Texas Law School.
President Painter sought and received an opinion on Sweatt‘s application from the Texas
Attorney General. In his letter to the Attorney General requesting his opinion, Painter wrote:
―This applicant is a citizen of Texas and duly qualified for admission into the Law School at
the University of Texas, save and except for the fact that he is a Negro.‖ The Attorney
General‘s opinion stated: ―There is no doubt that if equal educational advantages are not
provided for the applicant within the state, he must be admitted to the Law School of the
University of Texas.‖ However, the Attorney General wrote: ―The state is entitled to a
reasonable notice that the facilities providing equal educational advantages are desired
before its established policy of segregation is abrogated.‖ The Attorney General pointed out
that in 1945 the Texas Legislature had changed the name of Prairie View A&M, the statesupported institution of higher education for African Americans, to Prairie View University. In
addition, the Legislature had authorized Prairie View to teach any graduate or professional
level course, including law and medicine, offered at the University of Texas and specified that
these courses should be ―substantially equal to those offered at the University of Texas.‖
Once he received the Attorney General‘s opinion, President Painter dictated a letter to Sweatt
informing him that at this time his application for admission was denied. In May, 1946, Sweatt
filed suit against Painter and all the members of the University‘s Board of Regents in a Texas
District Court. The District Court denied Sweatt‘s petition for an order directing his admission
to the University‘s Law School and gave the state six months to provide a law school for
African American students. If the state did not do so, the judge ruled, the University of Texas
Law School would be required to admit Sweatt.
Before the District Court‘s decision could be appealed to the Texas Third Court of Civil
Appeals in Austin, Prairie View University established a Law School in a suite of offices in
downtown Houston, but not a single individual applied for admission. This meant that Texas
still had no law school for African Americans. In 1947, the Texas Legislature quickly passed
legislation authorizing the University of Texas Board of Regents to establish a temporary law
school in Austin to serve as ―the School of Law of the Texas State University for Negroes.‖
Such a Law School was established in four rooms in a building at 104 East 13 th Street. The
Legislature had mandated that students at this Law School would have access to the Texas
State Law Library. Three law school professors from the UT Law School had agreed to teach
classes for the African American students. Heman Sweatt received a letter of admission to
this new law school. Sweatt‘s lawyer advised him to reject the offer. Not a single applicant
applied for admission.
23
The Texas Third Court of Civil Appeals set aside the District Court‘s judgment and directed
that the case return for a rehearing before the District Court. After the rehearing where
numerous witnesses for both sides testified, the District Court ruled that the state of Texas
had now, as the court had earlier directed, provided Sweatt with a law school ―substantially
equal‖ to that of white students at the University of Texas School of Law. Therefore, the
judge denied Sweatt‘s petition for an order directing his admission to the University of Texas
School of Law.
In September, 1947, Sweatt appealed to the Texas Third Court of Civil Appeals in Austin
where he was represented by Thurgood Marshall. Marshall argued that the ―separate but
equal‖ argument was a fiction. The law school which the state had set up for Negroes on
East 13th Street, Marshall asserted, was far from being equal to the University of Texas
School of Law. The Third Court of Appeals, nonetheless, affirmed the District Court‘s
judgment. The Texas Supreme Court then denied Sweatt‘s application for a writ of error,
and the case was now appealed to the U. S. Supreme Court.
ISSUE: Does the equal protection of the laws clause of the Fourteenth
Amendment allow a state to provide separate law schools for students of
different races if those law schools are “substantially equal”?
24
Sweatt v Painter
Decision
The Supreme Court unanimously ruled against the state of Texas and in favor of Heman
Sweatt. Chief Justice Fred Vinson wrote: ―We hold that the Equal Protection Clause of the
Fourteenth Amendment requires that petitioner be admitted to the University of Texas Law
School.‖ Vinson elaborated: ―The University of Texas Law School, from which petitioner was
excluded, was staffed by a faculty of sixteen full-time and three part-time professors, some
of whom are nationally recognized authorities in their field. Its student body numbered 850.
The library contained over 65,000 volumes. Among the other facilities available to the
students were a law review, moot court facilities, scholarship funds, and Order of the Coif
affiliation. The school‘s alumni occupy the most distinguished positions in the private
practice of the law and in the public life of the state. It may properly be considered one of
the nation‘s ranking law schools. The law school for Negroes which was to have opened in
February, 1947, would have had no independent faculty or library. The teaching was to be
carried on by four members of the University of Texas Law School faculty, who were to
maintain their offices at the University of Texas while teaching at both institutions. Few of
the 10,000 volumes ordered for the library had arrived; nor was there any full-time librarian.
The school lacked accreditation.‖
Vinson went on to write: ―Whether the University of Texas Law School is compared with the
original or the new law school for Negroes, we cannot find substantial equality in the
educational opportunities offered white and Negro law students by the state. In terms of
number of the faculty, variety of courses and opportunity foir specialization, size of the
student body, scope of the library, availability of law review and similar activities, the
University of Texas Law School is superior. What is more important, the University of
Texas Law School possesses to a far greater degree those qualities which are
incapable of objective measurement but which make for greatness in a law school.
Such qualities, to name but a few, include reputation of the faculty, experience of the
administration, position and influence of the alumni, standing in the community,
traditions and prestige. It is difficult to believe that one who had a free choice
between these law schools would consider the question close.”
Vinson added: ―The law school, the proving ground for legal training and practice, cannot be
effective in isolation from the individuals and institutions with which the law interacts. … The
law school to which Texas is willing to admit petitioner excludes from its student body
members of the racial groups which number 85% of the population of the state and include
most of the lawyers, witnesses, jurors, judges, and other officials with whom petitioner will
inevitably be dealing when he becomes a member of the Texas bar. With such a substantial
and significant segment of society excluded, we cannot conclude that the education offered
petitioner is substantially equal to that which he would receive if admitted to the University of
Texas Law School.‖
SOURCE: For a full treatment of Sweatt v Painter see Gary M. Lavergne. Before
Brown: Heman Marion Sweatt, Thurgood Marshall, and the Long Road to Justice.
University of Texas Press, 2010. ISBN 978-0-292-72200-2.
25
Brown v Board of Education of Topeka, Kansas
347 U. S. 483 (1954)
A Kansas law permitted cities with more than 15,000 population to maintain separate
public schools for African American and white students. The Board of Education of
Topeka, Kansas, maintained segregated elementary schools, but other schools in the
district were not segregated. Linda Brown, an African American third grader, and her
family lived in Topeka, and there was an elementary school just five blocks from their
home. However, that school was reserved for white children only, and Linda had to
ride a bus to a school 21 blocks from her home that was reserved for African
American children only. In 1951, Linda‘s parents joined with the parents of some other
African American children and brought suit against the Topeka Board of Education in a
U. S. District Court. Thurgood Marshall, an attorney from the NAACP, represented the
African American parents. Marshall argued that the African American and white
schools were not equal in a number of ways, but more than that, he argued that
segregated schools were harmful to African American children. A three-judge U. S.
District Court agreed that racially segregated public schools had a detrimental effect on
African American children. The court, nevertheless, declined to order the
desegregation of the public schools because in its opinion the schools were
substantially equal, and that was all that was required by the nation‘s law at that time.
Class action suits were filed at the same time as Brown in three other states – South
Carolina, Virginia, and Delaware. In all three states, African American children were
compelled by state law to attend racially segregated public schools. The Kansas case
and the cases from the other three states were consolidated and appealed to the U. S.
Supreme Court where they were argued and decided together.
ISSUE: Does the racial segregation of children by state law in public
schools, even though the separate schools may be equal, deny minority
children the equal protection of the laws guaranteed by the U. S. Constitution’s Fourteenth Amendment?
26
Brown v Board of Education of Topeka, Kansas
Decision
Chief Justice Earl Warren wrote the opinion for a unanimous Court. He stated: ―We
conclude that in the field of public education the doctrine of ‗separate but equal‘ has no
place. Separate educational facilities are inherently unequal. Therefore, we hold that
the plaintiffs and others similarly situated for whom the actions have been brought are,
by reason of the segregation complained of, deprived of the equal protection of the
laws guaranteed by the Fourteenth Amendment.‖
Instead of weighing and comparing the equality of racially segregated schools on such
things as buildings, curriculum, qualifications and salaries of teachers, etc., the Chief
Justice said the Court had directed its attention to the heart of the matter: the effect of
racial segregation on children. He wrote: ―To separate them from others of similar age
and qualifications solely because of their race generates a feeling of inferiority as to
their status in the community that may affect their hearts and minds in a way unlikely
ever to be undone. … Segregation of white and colored children in public schools has
a detrimental effect upon the colored children. The impact is greater when it has the
sanction of the law; for the policy of separating the races is usually interpreted as
denoting the inferiority of the Negro group. A sense of inferiority affects the motivation
of a child to learn. Segregation with the sanction of law, therefore, has a tendency to
retard the educational and mental development of Negro children and deprive them of
some of the benefits they would receive in a racially integrated school system. …
Whatever may have been the extent of psychological knowledge at the time of Plessy
v Ferguson, this finding is amply supported by modern authority. Any language in
Plessy v Ferguson contrary to this finding is rejected.‖
NOTE: On the same day that the Court handed down its decision in Brown, the Court
also ended racial segregation in the public schools of the District of Columbia in
Bolling v Sharpe. Since there is no equal protection of the laws guarantee specifically
aimed at the federal government anywhere in the U. S. Constitution, the Court used
the due process of law clause of the Fifth Amendment to the U. S. Constitution to
accomplish this.
NOTE: The Supreme Court heard reargument in Brown v Board of Education II in
1955. The Court was again unanimous, and Chief Justice Warren once more spoke for
the Court. Warren wrote this time: ―…the cases are remanded to the District Courts to
take such proceedings and enter such orders and decrees consistent with this opinion
as are necessary and proper to admit to public schools on a racially nondiscriminatory
basis with all deliberate speed the parties to these cases.‖
27
Hernandez v Texas
347 U. S. 475 (1954)
In Edna, Texas, in 1951, Pete Hernandez, a 21 year old, single, Mexican American cotton
picker, was drinking at a bar with a friend when he became disruptive and was removed
from the bar. Pete went home, obtained a gun, returned, and shot Joe Espinoza. In
September, 1951, he was indicted for murder.
Prior to trial, Hernandez‘s lawyers moved to quash the indictment and the jury panel. They
argued that persons of Mexican descent had been systematically excluded from serving as
jury commissioners, grand jurors, and petit jurors even though there were such persons
living in Jackson County who were fully qualified to serve. They were able to establish that
14% of the county‘s population were persons with Mexican or Latin American surnames and
that 11% of the male population over 21 years of age had such names. The State of Texas
stipulated that ―for the last 25 years there is no record of any person with a Mexican or Latin
American surname having served on a jury commission , grand jury, or petit jury in Jackson
County.‖ The parties also stipulated that ―there are some male persons of Mexican or Latin
American descent in Jackson County who, by virtue of being citizens, householders, or
freeholders, and having all other legal prerequisites to jury service, are eligible to serve as
members of a jury commission, grand jury, and/or petit jury.‖ Hernandez‘s lawyers argued
that exclusion of this class deprived him, as a member of this class, of the equal protection
of the laws guaranteed by the Fourteenth Amendment to the U. S. Constitution. After a
hearing, the trial court judge denied the lawyers‘ motions. At trial, the motions were
repeated, evidence was again taken, and the motions were once more denied
At his trial in District Court in Jackson County, Hernandez‘s lawyers did not have a lot to
work with. They could only call Pete himself to be a witness. The state, on the other hand,
called eight witnesses to testify against Pete. In October, after only four hours of
deliberation, an all-Anglo jury found Hernandez guilty of murder with malice and then
sentenced him to life in prison. That judgment was appealed to the Texas Court of Criminal
Appeals. The sole basis of appeal was that the trial court erred in denying petitioner‘s
motions. The appellate court affirmed the trial court judgment but passed on the federal
question involved. The U. S. Supreme Court agreed to review that decision.
ISSUE: Is the equal protection of the laws clause of the Fourteenth
Amendment violated when a state tries a person of a particular race or
ancestry before a jury where all persons of that race or ancestry have
been excluded from serving?
28
Hernandez v Texas
Decision
Chief Justice Earl Warren delivered the opinion for a unanimous Court which agreed with
the arguments of Hernandez‘ attorneys and overturned his conviction. The Chief Justice
wrote: ―In numerous decisions, this court has held that it is a denial of the equal protection
of the laws to try a defendant of a particular race or color under an indictment issued by a
grand jury, or before a petit jury, from which all persons of his race or color have, solely
because of that race or color, been excluded by the state, whether acting through its
legislature, its courts, or its executive or administrative officers.‖ Warren noted: ―The State of
Texas would have us hold that there are only two classes – white and Negro – within the
contemplation of the Fourteenth Amendment. The decisions of this Court do not support
that view. ―
The Chief Justice continued: ―When the existence of a distinct class is demonstrated, and it
is further shown that the laws, as written or applied, single out that class for different
treatment not based on some reasonable classification, the guarantees of the Constitution
have been violated. The Fourteenth Amendment is not directed solely against discrimination
due to a ‗two-class theory‘ – that is, based upon differences between ‗white‘ and Negro.‖
Warren then noted that Hernandez‘s burden to substantiate the charge of group
discrimination was ―to prove that persons of Mexican descent constitute a separate class in
Jackson County, distinct from ‗whites.‘ … Here the testimony of responsible officials and
citizens contained the admission that residents of the community distinguished between
‗white‘ and ‗Mexican.‘ … Until very recent times, children of Mexican descent were required
to attend a segregated school for the first four grades. At least one restaurant in town
prominently displayed a sign announcing ‗No Mexicans served.‘ On the courthouse grounds
at the time of the hearing, there were two men‘s toilets, one unmarked, and the other
marked ‗Colored Men‘ and ‗Hombres Aqui.‘ No substantial evidence was offered to rebut the
logical inference to be drawn from these facts, and it must be concluded that petitioner
succeeded in his proof.‖
Warren concluded with the following: ―But it taxes our credulity to say that mere chance
resulted in there being no members of this class among the over 6,000 jurors called in the
past 25 years. The result bespeaks discrimination, whether or not it was a conscious
decision on the part of any individual jury commissioner. … Petitioner‘s only claim is the
right to be indicted and tried by juries from which all members of his class are not
systematically excluded – juries selected from among all qualified persons regardless of
national origin or descent. To this much, he is entitled by the Constitution.‖
Sources: For a complete treatment of this case, see: Michael Olivas. “Colored Men”
and “Hombres Aqui”: Hernandez v Texas and the Emergence of Mexican-American
Lawyering. Houston, Texas, Arte Publico Press, 2006. ISBN 10: 1-55885-476-2. Also,
see Ignacio Garcia. White But Not Equal: Mexican Americans, Jury Discrimination,
and The Supreme Court. Tucson, The University of Arizona Press, 2009.
ISBN 978-0-8165-2751-9.
29
White v Regester
412 U. S. 755 (1973)
In 1964, the U. S. Supreme Court ruled in Wesberry v Sanders that members of the U. S.
House of Representatives must be chosen from districts approximately equal in population.
In that same year, in Reynolds v Sims the Court ruled that members of both houses of a
state legislature must be chosen from districts approximately equal in population.
In 1970, as required by the Texas Constitution after each national census, the Texas
Legislature drew up a reapportionment plan for the Texas House of Representatives but
was unable to agree upon a reapportionment plan for the Texas Senate. Litigation was
immediately filed in a Texas District Court challenging the constitutionality of the
reapportionment plan for the Texas House. The Texas Supreme Court eventually ruled that
the legislature‘s House reapportionment plan violated the Texas Constitution. Meanwhile, as
required by the Texas Constitution, the Legislative Redistricting Board began the task of
reapportioning the Texas Senate. Because of the judicial invalidation of the House
reapportionment plan, the Board soon also had to work on reapportioning the Texas House.
In October, 1971, the Board released its proposed reapportionment plans for both
chambers of the Texas Legislature. Four lawsuits, eventually consolidated, were filed in a
three-judge U. S. District Court. With respect to the House plan, these lawsuits alleged that
the districts as drawn contained impermissible deviations from population equality and that
the plan‘s multi-member districts for Dallas and Bexar counties were constitutionally invalid
because they diluted the voting strength of racial and ethnic minorities. The three-judge
District Court upheld the reapportionment plan for the Senate but agreed with both
arguments made by the plaintiffs and found the House plan unconstitutional. This court
gave the Texas Legislature until July, 1973, to reapportion the Texas House but did allow
the Legislative Redistricting Board‘s plan to be used for the 1972 elections except for the
requirement that the multi-member districts for Dallas and Bexar counties be reconstituted
into single-member districts. As provided by law, the judgment of the three-judge U. S.
District Court was appealed directly to the U. S. Supreme Court.
ISSUE: (1) Are the legislative districts for the Texas House of
Representatives drawn by the Texas Legislative Redistricting Board
unconstitutional because the districts vary too much in population size
and thus violate the equal protection of the laws clause of the Fourteenth
Amendment? (2) Are the multi-member Texas House districts created for
Dallas and Bexar counties discriminatory against racial or ethnic
minorities in those counties and thus unconstitutional?
30
White v Regester
Decision
Speaking through Justice Byron White, the Supreme Court by a 6-3 vote reversed the threejudge U. S. District Court‘s judgment on the first question. Justice White pointed out that the
population variance between the largest and the smallest Texas House district created by
the Legislative Redistricting Board‘s reapportionment plan was 9.9%. The majority
concluded that this variance was acceptable, and thus, the district court was in error on this
point. Referring to several of the Supreme Court‘s prior rulings, Justice White wrote: ―…
state reapportionment statutes are not subject to the same strict standards applicable to
reapportionment of congressional seats.‖ He went on to write: ―… we do not consider
relatively minor population deviations among state legislative districts to substantially dilute
the weight of individual votes in the larger districts so as to deprive individuals in those
districts of fair and effective representation. … we cannot glean an equal protection
violation from the single fact that two legislative districts in Texas differ from one another by
as much as 9.9% when compared to the ideal district. Very likely, larger differences
between districts would not be tolerable…‖
Justice William Brennan, joined by Justices William O. Douglas and Thurgood Marshall,
disagreed with the majority‘s position relative to this first question. Brennan wrote: ―… the
decision to uphold the state apportionment scheme reflects a substantial and very
unfortunate retreat from the principles established in our earlier cases …
…one can
reasonably surmise that a line has been drawn at 10% … deviations less than that amount
require no justification whatsoever. … We have demanded equality in district population
precisely to insure that the weight of a person‘s vote will not depend on the district in which
he lives. The conclusion that a state may, without any articulated justification, deliberately
weight some persons‘ votes more heavily than others seems to me fundamentally at odds
with the purpose and rationale of our reapportionment decisions.‖
The Court‘s decision relative to the second question was 9-0. Still speaking through Justice
White, the Court thus unanimously concluded that the multi-member House districts for
Dallas and Bexar counties were unconstitutional. Justice White wrote that the District Court
correctly did not hold ―that every racial or political group has a constitutional right to be
represented in the state legislature.‖ However, he continued, ―from its special vantage
point,‖ the District Court did conclude that the multi-member districts in Dallas and Bexar
counties ―invidiously excluded ― African Americans and Mexican Americans ―from effective
participation in political life, specifically in the election of representatives to the Texas House
of Representatives.‖
31
Edgewood Independent School District, et. al. v Kirby, et. al.
777 S. W. 2nd 391 (Tex. 1989)
In 1968 Demetrio Rodriguez and other parents of Mexican American students in the
Edgewood Independent School District of San Antonio, Texas, filed a class action suit in
U.S. District Court challenging Texas‘ public school finance system. Under the Texas
system, the state appropriated funds to provide each child with a minimum education. Each
local school district then enriched that basic education with funds derived from locally levied
ad valorem property taxes. Since the value of taxable property and the number of schoolaged children varied greatly among the state‘s many school districts, significant interdistrict
disparities existed in available enrichment revenues, per-pupil expenditures, and tax rates.
The plaintiffs argued that this led to better education for students in wealthier school districts
and worse education for students in poorer districts and was thus a violation of the equal
protection of the laws of the Fourteenth Amendment to the U. S. Constitution. A three-judge
panel of the U. S. District Court unanimously ruled that education was a fundamental
constitutional right and that wealth based classifications such as Texas had created were
constitutionally suspect. On appeal, the U. S. Supreme Court in 1973 in San Antonio
Independent School District v Rodriguez by a 5-4vote reversed the lower court‘s decision
and thus sustained Texas‘ public school finance system. The majority held that education is
not a fundamental right since it is neither explicitly nor implicitly guaranteed by the U. S.
Constitution.
In the decade after Rodriguez, Texas enacted a series of ―equalization‖ reforms but failed
to reduce significantly the interdistrict inequities in access to resources, per-pupil
expenditures, and tax rates. With recourse to the U. S. Constitution and federal courts
foreclosed by virtue of the U. S. Supreme Court‘s decision in Rodriguez, the Mexican
American Legal Defense and Education Fund (MALDEF) on behalf of the Edgewood
Independent School District, other school districts, Rodriguez, and other parents of Mexican
American students filed suit in a Texas District Court against Texas Commissioner of
Education William Kirby and others. They argued that the state‘s public school finance
system violated the Texas Constitution. In 1987 the District Court ruled in favor of the
plaintiffs by finding Texas‘ public school finance system unconstitutional. The District Court
ordered the Texas Legislature to formulate a more equitable system by 1989. The state
appealed this decision to a three-judge panel of Texas‘ Third Court of Appeals which
reversed the District Court‘s judgment on grounds that education was not a basic right and
furthermore ruled that Texas‘ system of public school finance was constitutional. The
Edgewood Independent School District and the other plaintiffs appealed to the Texas
Supreme Court.
Issue: Does Texas’ present public school finance system that has resulted
in great disparities among the state’s public school districts violate Article
7, Section 1 of the Texas Constitution which requires the state to support
and maintain “an efficient system of public free schools”?
32
Edgewood ISD, et. al. v Kirby, et. al. (1989)
Decision
The Texas Supreme Court unanimously ruled that the state‘s public school finance system
was a violation of Article 7, Section 1 of the Texas Constitution. Justice Oscar Mauzy wrote
for the Court: ―There are glaring disparities in the abilities of the various school districts to
raise revenues from property taxes because taxable property wealth varies greatly from
district to district. The wealthiest district has over $14,000,000 of property wealth per
student, while the poorest has approximately $20,000; this disparity reflects a 700 to 1
ratio. The 300,000 students in the lowest-wealth schools have less than 3% of the state‘s
property wealth to support their education while the 300,000 students in the highest-wealth
schools have over 25% of the state‘s property wealth; thus the 300,000 students in the
wealthiest districts have more than eight times the property value to support their education
as the 300,000 students in the poorest districts. … Because of the disparities in district
property wealth, spending per student varies widely, ranging from $2,112 to $19,333. …
The lower expenditures in the property-poor districts are not the result of lack of tax effort.
Generally, the property-rich districts can tax low and spend high while the property-poor
districts must tax high merely to spend low. … Property-poor districts are trapped in a
cycle of poverty from which there is no opportunity to free themselves. … The amount of
money spent on a student‘s education has a real and meaningful impact on the educational
opportunity offered that student. High-wealth districts are able to provide for their students
broader educational experiences including more extensive curricula, more up-to-date
technological equipment, better libraries and library personnel, teacher aides, counseling
services, lower student-teacher ratios, better facilities, parental involvement programs, and
drop-out prevention programs. … The differences in the quality of educational programs
offered are dramatic. For example, San Elizario I. S. D. offers no foreign language, no prekindergarten program, no chemistry, no physics, no calculus, and no college preparatory or
honors program. It also offers virtually no extra-curricular activities such as band, debate, or
football. … Considering ‗the general spirit of the times and the prevailing sentiments of the
people,‘ it is apparent from the historical record that those who drafted and ratified Article
VII, Section 1 never contemplated the possibility that such gross inequalities could exist
within an ‗efficient‘ system. … The legislature‘s recent efforts have focused primarily on
increasing the state‘s contributions. More money allocated under the present system would
reduce some of the existing disparities between districts but would at best only postpone the
reform that is necessary to make the system efficient. A band-aid will not suffice; the system
itself must be changed. … Children who live in poor districts and children who live in rich
districts must be afforded a substantially equal opportunity to have access to educational
funds. Certainly this much is required if the state is to educate its populace efficiently and
provide for a general diffusion of knowledge statewide.‖
33
Tinker v. Des Moines Independent Community SCHOOL DISTRICT
393 U. S. 503 (1969)
In December, 1965, at a meeting in Des Moines, Iowa, adults and students discussed how
they could publicize their objections to United States involvement in the Vietnam War. The
students decided that they would wear black armbands to school to show their sorrow for
those on both sides who had died in the war and their support for a proposed truce. When
the principals of their schools became aware of the students‘ plan to wear the armbands,
they adopted a policy that any student joining the protest would be asked to remove the
armband and that any student who refused to do so would be suspended until he or she
returned to school without the armband. The students were aware of this newly adopted
policy.
On December 16, Mary Beth Tinker, a thirteen year old junior high student, and Christopher
Eckhardt, a student at Roosevelt High School, wore two-inch wide black armbands to their
schools. On December 17, John Tinker, a fifteen year old student at North High School, and
several other high school students did the same. The armbands caused some comments
and warnings, and some students poked fun at the demonstrating students. One teacher
indicated that his lesson was "wrecked" because of the demonstration and that the
armbands diverted students' minds from their regular lessons. However, no disturbances on
school premises occurred. The demonstrating students merely went to their classes wearing
the black armbands. Mary Beth and five high school students, including John and
Christopher, were sent home and told that they could come back to school if they removed
the armbands.
The students‘ parents filed a complaint in a United States District Court and asked for an
injunction to restrain school officials from disciplining the students. The District Court
dismissed the complaint. The court reasoned that the action taken by school officials was a
reasonable response to prevent possible disturbance of the public school environment. The
parents appealed to the U. S. Court of Appeals for the Eighth Circuit. This court was equally
divided, thus allowing the District Court's decision to stand. The parents then appealed to
the United States Supreme Court.
ISSUE: Is the peaceful wearing of armbands by students attending public
schools to protest the nation‘s involvement in war freedom of speech protected
by the First Amendment?
34
Tinker v. Des Moines Independent Community SCHOOL DISTRICT
Decision
By a 7-2 vote, the Supreme Court overturned the judgment of the lower courts and ruled in
favor of the First Amendment rights of public school students. Justice Abe Fortas wrote the
opinion of the Court. He noted that wearing the arm bands was "closely akin to ‗pure
speech‘‖ which the Supreme Court has repeatedly held falls under First Amendment protection. He then declared that ―First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or
expression at the school-house gate (emphasis added). .... In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be
able to show that its action was caused by something more than a mere desire to avoid the
discomfort and unpleasantness that always accompany an unpopular viewpoint. Certainly
where there is no finding and no showing that engaging in the forbidden conduct would
‗materially and substantially interfere with the requirements of appropriate discipline in the
operation of the school,‘ the prohibition cannot be sustained.... In the present case, the District Court made no such finding, and our independent examination of the record fails to yield
evidence that the school authorities had reason to anticipate that the wearing of the armbands would substantially interfere with the work of the school or impinge upon the rights of
other students .... It is also relevant that the school authorities did not purport to prohibit the
wearing of all symbols of political or controversial significance.‖
Justice Hugo Black dissented and wrote an opinion in which he expressed his view that the
Court's holding in this case ushered in what he deemed to be an entirely new era in which
the power to control pupils is in ultimate effect transferred to the Supreme Court.
He disagreed with Fortas‘ view that the Bill of Rights does not stop at the schoolhouse gate:
―The truth is that a teacher of kindergarten, grammar school, or high school pupils no more
carries into a school with him a complete right to freedom of speech and expression than an
anti-Catholic or anti-Semite carries with him a complete freedom of speech and religion into
a Catholic church or Jewish synagogue. … This case, therefore, wholly without constitutional reasons in my judgment, subjects all the public schools in the country to the whims
and caprices of their loudest-mouthed, but maybe not their brightest, students. I, for one, am
not fully persuaded that school pupils are wise enough ... to run the 23,390 public school
systems in our 50 states. I wish, therefore, wholly to disclaim any purpose on my part to hold
that the Federal Constitution compels the teachers, parents, and elected school officials to
surrender control of the American public school system to public school students.‖
35
Wisconsin v. Yoder, et al.
406 U.S. 205 (1972)
Jonas Yoder, Wallace Miller, and Adin Yutzy were members of the Amish church. The
Amish believe that salvation requires life in a church community separate and apart from the
world and that members of the community must make their living by farming or closely
related activities. Yoder, Miller, Yutzy and their families were residents of Green County,
Wisconsin. Wisconsin's compulsory school attendance law required children to attend public
or private school until reaching sixteen-years-of-age. Frieda Yoder (age fifteen), Barbara
Miller (age fifteen), and Vernon Yutzy (age fourteen) finished the eighth grade in public
school but had not attended public or private school thereafter. The Amish objected to their
children attending high school because the values taught there were very different from
Amish values and the Amish way of life. The Amish also believe that high school education
takes children away from their community during the crucial and formative adolescent period
when the children should be acquiring Amish attitudes toward manual work and attaining
specific skills needed to perform the adult role of an Amish farmer or housewife.
After the school district brought a complaint against them, Yoder, Miller, and Yutzy were
charged with violating Wisconsin‘s compulsory school attendance law. The Amish argued
that the law violated their free exercise of religion as guaranteed by the First Amendment.
Trial testimony showed the Amish believed that sending their children to high school would
not only expose them to censure by the church community but also would endanger their
salvation as well as that of their children. The trial court determined that the state‘s law did
interfere with the Amish freedom to act in accordance with their sincere religious beliefs but
that the requirement of high school attendance until age sixteen was a reasonable and
constitutional exercise of governmental power. The parents were convicted and fined $5
each. They appealed to a Wisconsin Circuit Court which affirmed the convictions. The
Wisconsin Supreme Court, however, agreed with the parents' First Amendment argument
and reversed their convictions. The state then appealed to the U. S. Supreme Court.
Does a state law requiring children to attend school until the age of sixteen
violate Amish rights under the free exercise of religion clause of the First
Amendment?
36
Wisconsin v. Yoder (1972)
Decision
By a 6-1 vote (Justices Lewis Powell and William Rehnquist not participating), the Supreme
Court held that the First Amendment‘s free exercise of religion clause prevents a state from
compelling Amish children to attend school to the age of sixteen. In his opinion for the Court,
Chief Justice Warren Burger noted that according to an expert who testified at their trial in a
state court, if the Amish children were required to attend public high schools, the conflict
between the worldly values of a secular society and the nonworldly values of a religious
society would do psychological harm to the Amish children. The experts further testified,
Burger noted, that, torn between state law and demands of their religion, the children might
leave their church which could mean the end of the Amish community. The Chief Justice
also noted that a second expert testified that the Amish way of raising their children by
"learning through doing" farm and vocational work was superior to the ordinary high school
education. In addition, he pointed out, records showed that most Amish children became
self-sufficient members of society with excellent records as law-abiding citizens. The Amish,
he stated, instilled social and political responsibilities of citizenship in their children, and
records disclosed that the Amish had never been known to commit crimes, to receive public
assistance, or to be unemployed. Furthermore, the Chief Justice asserted, there was
nothing in the record to show that the health, safety, or welfare of the Amish children was
endangered by the actions of the parents. He concluded his opinion with the observation
that ―nothing we hold is intended to undermine the general applicability of the state‘s
compulsory school attendance statute.‖
Justice William O. Douglas concurred in part and dissented in part. He agreed with the
Court‘s judgment relative to Frieda Yoder since she had testified as to her views. He
dissented relative to Vernon Yutzy and Barbara Miller because they had not testified as to
their views. Douglas wrote: ―It is the future of the student, not the future of the parents, that
is imperiled by today's decision. If a parent keeps his child out of school beyond the grade
school, then the child will be forever barred from entry into the new and amazing world of
diversity that we have today. The child may decide that is the preferred course, or he may
rebel. It is the student's judgment, not his parents', that is essential if we are to give full
meaning to what we have said about the Bill of Rights and of the rights of students to be
masters of their own destiny. If he is harnessed to the Amish way of life by those in
authority over him and if his education is truncated, his entire life may be stunted and
deformed. The child, therefore, should be given an opportunity to be heard before the State
gives the exemption which we honor today.‖
37
Cases, Cases and More Cases!
HIGH SCHOOL
GOVERNMENT
38
Grutter v Bollinger
539 U. S. 306 (2003)
The University of Michigan Law School concluded that a diverse student body was a worthy
goal that benefited all students. It, therefore, decided to institute a plan that sought to grant
admission to a ―critical mass‖ of qualified minority students. This meant that some white
students would be denied admission even though they had higher grades and test scores.
Race (for African Americans) or ethnicity (for Hispanics and Native Americans) was thus
one factor which was considered in evaluating candidates for admission, but it was not
decisive and was by no means the only factor considered. The Law School‘s admissions
committee considered many other factors: an applicant‘s LSAT score, undergraduate GPA,
enthusiasm of recommenders, quality of the undergraduate institution, quality of the essay
written for admission, residency, leadership and work experience, unique talents or
interests, and difficulty of undergraduate course selection. In addition, students were
sometimes admitted if there was a combination of poor performance on standardized tests
but consistently outstanding academic records. No seats in the entering law school class
were reserved or set aside for minority students. The stated goal of the Law School‘s
admissions procedure was ―to admit a group of students who individually and collectively
are among the most capable students applying to American law schools in a given year.‖
In 1996, Barbara Grutter, a forty-three year old single mother, applied for admission to the
University of Michigan Law School. Grutter was Caucasian and had a 3.8 undergraduate
GPA and a score on the LSAT which placed her nationally in the 86 th percentile. After
several months of being placed on a ―wait list,‖ she was notified that her application for
admission had been denied. She then filed a class action suit in a U. S. District Court,
claiming that she was denied admission because minority students were given preferential
treatment. The District Court ruled for Grutter and concluded that ―the university‘s use of
race as a factor in its admissions decisions was unconstitutional and a violation of the Civil
Rights Act of 1964.‖ It enjoined the law school from continuing to use race in its admissions
decisions. The law school appealed to the U. S. Court of Appeals for the Sixth Circuit which
overturned the lower court‘s judgment. This court reasoned that the law school had tailored
its admissions procedure in compliance with the U. S. Supreme Court‘s 1978 ruling in
Regents of the University of California v Bakke which at the time was the controlling
legal precedent on this issue in the nation. Grutter now appealed to the U. S. Supreme
Court.
ISSUE: Does the use of race as one factor which a state university’s law
school considers when it decides which students to admit violate the
equal protection of the laws clause of the Fourteenth Amendment to the
U.S. Constitution or the Civil Rights Act of 1964?
39
Grutter v Bollinger
Decision
The U. S. Supreme Court by a 5-4 vote upheld the University of Michigan Law School‘s
admissions procedure. On the same day, in a separate case, Gratz v Bollinger, by a 6-3
vote, the Court struck down a different admissions process being used by the University‘s
undergraduate school.
Justice Sandra Day O‘Connor wrote for the majority. She pointed out that ―context matters
when reviewing race-based governmental action‖ and that ―not every decision influenced by
race is equally objectionable.‖ She added that ―we have never held that the only
governmental use of race that can survive strict scrutiny is remedying past discrimination.‖
She then noted that although ―outright racial balancing‖ is ―patently unconstitutional,‖ the law
school‘s ―good faith‖ pursuit of classroom diversity was entitled to ―deference.‖ She also
accepted the law school‘s argument that admitting ―a critical mass‖ of minority students was
essential to achieving student diversity and ―the educational benefits that diversity is
designed to produce.‖ Although admitting enough minority students was essential to
achieving ―a critical mass,‖ O‘Connor emphasized that, in the majority‘s opinion, this did not
amount to imposing a quota because it did not set aside a fixed number or percentage of
class positions. Finally, she pointed out that ―the law school engages in a highly
individualized, holistic review of each applicant‘s file in which race counts as a factor but is
not used in a mechanical way.‖ For that reason, she stated, the law school‘s policy was
consistent with Justice Powell‘s controlling opinion in Bakke in 1978 where the Court
permitted the use of race as ―one plus factor.‖
Chief Justice William Rehnquist, joined by Justices Scalia, Thomas, and Kennedy, wrote the
principal dissenting opinion. He wrote that he did not believe that the law school‘s admission
process was ―narrowly tailored to the interest it asserts,‖ namely achieving ―a critical mass‖
of minorities. ―Stripped of its ‗critical mass‘ veil,‖ he stated, ―the law school‘s program is
revealed as a naked effort to achieve racial balancing.‖ He concluded by writing that, in the
opinion of the dissenting justices, the law school had set up its admissions process not to
achieve ―a critical mass‖ but to admit minority students ―in proportion to their statistical
representation in the applicant pool.‖ This, he emphasized, ―is precisely the type of racial
balancing that the Court itself calls ‗patently unconstitutional.‘‖
40
Baker, et al. v. Carr, et al.
369 U.S. 186 (1962)
The Tennessee Constitution requires apportionment of both houses of the state legislature
on the basis of population after the census every ten years. However, since 1901and the
1900 census, no apportionment had been carried out in spite of changes in population
growth and the movement of large numbers of people from rural areas to urban areas of the
state. As a result, by 1960, the state‘s House districts varied in population from 3,454 to
79,301, and the state‘s Senate districts varied in population from 39,727 to 237,905.
The mayor of Nashville, a county judge, and residents of several Tennessee urban areas
filed suit in federal court against Joe C. Carr, the Tennessee Secretary of State, and other
state officials. They argued that the 1901 Tennessee apportionment law denied them the
equal protection of the laws guaranteed by the Fourteenth Amendment. They sought to
have the apportionment law declared unconstitutional and to obtain an injunction restraining
the conduct of further elections under the law. The complainants also requested the court to
order an election at large for members of the state legislature or, as an alternative, to order
an election with equitably apportioned legislative districts based on the most recent census
figures.
A three-judge U. S. District Court dismissed the case for lack of jurisdiction based on the
1946 case of Colegrove v. Green where the U. S. Supreme Court ruled that federal courts
did not have jurisdiction to hear cases involving the drawing of legislative districts because
this was a ―political question‖ to be answered by the elected branches of government. The
plaintiffs then appealed to the U. S. Supreme Court.
ISSUE: Under the equal protection of the laws clause of the Fourteenth
Amendment, do federal courts have jurisdiction to hear cases involving the
drawing of legislative districts?
41
Baker v. Carr (1962)
Decision
By a 6-2 vote (one justice did not participate), the Supreme Court overturned the prior Supreme Court‘s ruling in Colegrove v Green and held that under the equal protection of the
laws clause of the Fourteenth Amendment, federal courts do have jurisdiction to hear
cases involving the drawing of legislative districts. Writing for the majority, Justice William
Brennan pointed out that the plaintiffs' votes had been debased by the Tennessee Legislature‘s failure to redraw districts for the state legislature in accordance with its own constitution. He wrote: ―These appellants seek relief in order to protect or vindicate an interest of
their own, and of those similarly situated. Their constitutional claim is, in substance, that
the 1901 statute constitutes arbitrary and capricious state action, offensive to the Fourteenth Amendment in its irrational disregard of the standard of apportionment prescribed
by the State's Constitution or of any standard, effecting a gross disproportion of representation to voting population. The injury which appellants assert is that this classification disfavors the voters in the counties in which they reside, placing them in a position of constitutionally unjustifiable inequality vis-a-vis voters in irrationally favored counties. A citizen's
right to a vote free of arbitrary impairment by state action has been judicially recognized
as a right secured by the Constitution, when such impairment resulted from dilution by a
false tally....‖ Referring to the Court‘s 1946 decision in Colegrove v Green, Brennan asserted that ―the District Court misinterpreted Colegrove v. Green and other decisions of
this Court on which it relied. Appellants' claim that they are being denied equal protection
is justiciable, and if discrimination is sufficiently shown, the right to relief under the equal
protection clause is not diminished by the fact that the discrimination relates to political
rights. ... We conclude that the complaint's allegations of a denial of equal protection present a justiciable constitutional cause of action upon which appellants are entitled to a trial
and a decision. The right asserted is within the reach of judicial protection under the Fourteenth Amendment.‖
Justice Tom Clark concurred and in a concurring opinion described the apportionment picture in Tennessee as a "... a crazy quilt without rational basis." He then proceeded to
show that the plaintiffs had no way of challenging the discrimination in voting strength and
that the only road open to them was through the courts. He concluded: ―As John Rutledge
said 175 years ago in the course of the Constitutional Convention, a chief function of the
Court is to secure the national rights. Its decision today supports the proposition for which
our forebears fought and many died, namely, that to be fully conformable to the principle
of right, the form of government must be representative. That is the keystone upon which
our government was founded and lacking which no republic can survive. It is well for this
Court to practice self-restraint and discipline in constitutional adjudication, but never in its
history have those principles received sanction where the national rights of so many have
been so clearly infringed for so long a time. National respect for the courts is more enhanced through the forthright enforcement of those rights rather than by rendering them
nugatory through the interposition of subterfuges. In my view the ultimate decision today is
in the greatest tradition of this Court.‖
42
Because he had written the opinion of the Court in Colegrove v Green, Justice Felix
Frankfurter felt strongly about its repudiation. He thus dissented and in a dissenting
opinion, joined by Justice John Marshall Harlan III, argued once again that the courts
are competent neither to determine the constitutionality of election districts nor to formulate workable remedies. He warned the courts once more about the damage they
might incur by engaging in political matters: ―The Court's authority -- possessed neither
of the purse nor the sword--ultimately rests on sustained public confidence in its moral
sanction. Such feeling must be nourished by the Court's complete detachment, in fact
and in appearance, from political entanglements and by abstention from injecting itself
into the clash of political forces in political settlements. … This would lead the judiciary into a ‗mathematical quagmire.‘‖
Justice Harlan wrote his own dissenting opinion which Justice Frankfurter joined.
Harlan asserted that the Tennessee districts were not so irrational as to be unconstitutional. He wrote: ―It is at once essential to recognize this case for what it is. The issue
here related ... to the right of a State to fix the basis of representation in its own legislature. … I can find nothing in the Equal Protection Clause or elsewhere in the Federal
Constitution which expressly or impliedly supports the view that state legislatures must
be so structured as to reflect with approximate equality the voice of every voter. Not
only is that proposition refuted by history ... but it strikes deep into the heart of our federal system. In the last analysis, what lies at the core of this controversy is a difference
of opinion as to the function of representative government. It is surely beyond argument that those who have the responsibility for devising a system of representation
may permissibly consider that factors other than bare numbers should be taken into
account. There is nothing in the Federal Constitution to prevent a State, acting not irrationally, from choosing any electoral legislative structure it thinks best suited to the interests, temper, and customs of its people.... A state's choice to distribute electoral
strength among geographical units, rather than according to a census of population, is
certainly no less a rational decision of policy than would be its choice to levy a tax on
property rather than a tax on income. Both are legislative judgments entitled to equal
respect from this Court ....‖
43
Engel, et al. v. Vitale, et al.
370 U.S. 421 (1962)
The New York Board of Regents, a governmental agency created by the New York
Constitution, composed a prayer and recommended its use to the state‘s public schools.
The Board of Education of Union Free School District No. 9, New Hyde Park, New York,
required its schools to begin each school day with the prayer: Students recited the prayer
aloud immediately following the Pledge of Allegiance in the presence of a teacher who either
led the prayer or selected a student to do so. Shortly after the Board of Education adopted
the policy requiring students to recite the Regents' prayer, the parents of ten students
brought suit in a New York state court. The parents challenged the constitutionality of the
prayer because it was contrary to their religious beliefs and those of their children. They
argued that the prayer was a violation of the no establishment of religion clause of the First
Amendment. The trial court upheld the use of the prayer as a part of a school‘s daily
procedure so long as the school did not compel any student to join in the prayer over
parents' objections. Following the trial court‘s direction, the Hyde Park Board of Education
adopted a policy allowing students not to participate in reciting the prayer. Students could
either remain silent or be excused entirely. The New York Court of Appeals upheld the trial
court‘s judgment, and the parents then appealed to the U. S. Supreme Court.
Does a school board requirement that public school students recite a
government composed prayer violate the First Amendment's no establishment
of religion clause?
44
Engel v. Vitale (1962)
Decision
By a six-to-one vote (Justices Felix Frankfurter and Byron White not participating), the
Supreme Court overturned the judgment of the New York courts and ruled that requiring
public school students to recite a government composed prayer is a violation of the no
establishment of religion clause of the First Amendment. In his opinion for the Court, Justice
Hugo Black wrote: "It is no part of the business of government to compose official prayers
for any group of the American people to recite as part of a religious program carried on by
government.‖ He addressed the School Board‘s new policy allowing students to remain
silent or leave the room: ―The establishment clause, unlike the free exercise clause, does
not depend upon any showing of direct governmental compulsion and is violated by the
enactment of laws which establish an official religion whether these laws operate directly to
coerce nonobserving individuals or not.‖ He continued: ―When the power, prestige, and
financial support of government is placed behind a particular religious belief, the indirect
coercive pressure upon religious minorities to conform to the prevailing officially approved
religion is plain. But the purposes underlying the establishment clause go much further than
that. Its first and most immediate purpose rested on the belief that a union of government
and religion tends to destroy government and to degrade religion.‖ Black speaks about the
Founders and the establishment clause: ―The establishment clause thus stands as an
expression of principle on the part of the Founders of our Constitution that religion is too
personal, too sacred, too holy, to permit its ‗unhallowed perversion‘ by a civil magistrate.
Another purpose of the establishment clause rested upon an awareness of the historical fact
that governmentally established religions and religious persecutions go hand in hand.‖
Finally, he addresses the argument that some might find the Court‘s ruling an indication of
hostility toward religion or prayer. He points out that if there were no law requiring a certain
prayer to be used, those who wanted to could still ‗find a place in which (they) could pray
when (they) pleased to the God of (their) faith in the language (they) chose.‘ He goes on to
explain that the Bill of Rights ‗tried to put an end to governmental control of religion and of
prayer (but) was not written to destroy either.‘ ―
Justice William O. Douglas concurred with the Court‘s judgment and wrote a concurring
opinion in which he examined the many "aids" to religion that are provided by government
such as chaplains in both houses of Congress and in the armed services. However,
Douglas notes, the Bill of Rights does not allow either a state or the federal government ―to
adopt an official prayer and penalize anyone who would not utter it."
Justice Potter Stewart was the only dissenter. In his dissenting opinion, he wrote: "The Court
has misapplied a great constitutional principle. I cannot see how an ‗official religion‘ is
established by letting those who want to say a prayer say it. On the contrary, I think that to
deny the wish of these school children to join in reciting this prayer is to deny them the
opportunity of sharing in the spiritual heritage of our nation." He cites several examples of
how government already fosters religion, including the fact that since 1865 the words "IN
GOD WE TRUST" have appeared on our coins. He sums up his dissent by quoting the
words of Justice Douglas in the 1952 Supreme Court case of Zorach v. Clauson, "We are a
religious people whose institutions presuppose a Supreme Being."
45
Gideon v. Wainwright
372 U. S. 335 (1963)
In 1961, Clarence Earl Gideon was arrested in Florida and charged with breaking and entering a poolroom with intent to commit petty larceny. Gideon was an indigent and thus unable
to afford counsel. At his trial in a Florida state court, he asked the judge to appoint an attorney to represent him. The judge refused to do so because under Florida law at that time, an
indigent accused of a crime was entitled to the assistance of counsel provided by the state
only if charged with a capital offense. Under U. S. constitutional law at that time, as enunciated by the U. S. Supreme Court in 1942 in Betts v Brady, a state was only required to appoint counsel for an indigent accused if the accused was a victim of ―special circumstances‖
such as feeblemindedness, illiteracy, youth, etc. Gideon did not claim to be a victim with
―special circumstances.‖
Gideon defended himself to the best of his ability, but a six-man jury found him guilty, and he
was sentenced to five years in jail. He obtained law books and prepared an appeal to the
Florida Supreme Court. After losing there, he prepared a handwritten petition asking the U.
S. Supreme Court to consider his appeal. The Supreme Court agreed to do so. Gideon also
asked the Court‘s permission to proceed in forma pauperis (as a pauper). In such cases, if
the Court grants permission, as it did in Gideon‘s case, among other things, it appoints
counsel to represent the accused before the Court. In Gideon‘s case, the Court appointed
Abe Fortas as his attorney.
Does trying an indigent defendant in a state court for a serious criminal offense
without providing him with a lawyer at state expense violate the Sixth
Amendment‘s right to counsel?
46
Gideon v. Wainwright (1963)
Decision
Justice Hugo Black wrote the opinion for a unanimous U. S. Supreme Court. The Court ruled
that the Sixth Amendment requires that in any serious criminal case in a state court, if the
defendant cannot afford counsel, the state must provide one. Black explained the reason for
this new rule: ―Reason and reflection required us to recognize that in our adversary system
of criminal justice, any person hailed into court, who is too poor to hire a lawyer, cannot be
assured a fair trial unless counsel is provided for him.
This seems to us to be an obvious truth. Governments, both state and federal, quite
properly spend vast sums of money to establish machinery to try defendants accused of
crime. ‗Lawyers to prosecute are everywhere deemed essential‘ to protect the public's
interest in an orderly society. Similarly, there are few defendants charged with crime, few
indeed, who fail to hire the best lawyers they can get to prepare and present their defenses.
That government hires lawyers to prosecute and defendants who have the money hire
lawyers to defend are the strongest indications of the widespread belief that lawyers in
criminal courts are necessities, not luxuries. The right of one charged with crime to counsel
may not be deemed fundamental and essential to fair trials in some countries, but it is in
ours. From the very beginning, our state and national constitutions and laws have laid great
emphasis on procedural and substantive safeguards designed to assure fair trials before
impartial tribunals in which every defendant stands equal before the law. This noble ideal
cannot be realized if the poor man charged with crime has to face his accusers without a
lawyer to assist him.‖
FOLLOW-UP: Gideon was retried before the same judge in the same courtroom, but this
time he had a court-appointed attorney and was acquitted.
47
Mapp v. Ohio
367 U. S. 643 (1961)
In 1914 in Weeks v United States the U. S. Supreme Court unanimously ruled that
evidence seized illegally in violation of the Fourth Amendment‘s prohibition on unreasonable
searches and seizures is inadmissible in federal courts. The so-called exclusionary rule was
thus born. In 1949 the U. S. Supreme Court ruled in Wolf v Colorado that the Fourth
Amendment is incorporated by the due process of law clause of the Fourteenth Amendment
and thus now applies to the states. However, the Court declined to apply the exclusionary
rule to the states. Thus, evidence seized illegally in violation of the Fourth Amendment was
still admissible against the accused in state courts.
In 1957 three Cleveland, Ohio, police officers arrived at Dollree Mapp's home looking for a
fugitive wanted for questioning in connection with a recent bombing and for evidence
involving an illegal gambling operation Mapp refused to admit them, and they had no search
warrant authorizing a search of the premises. The officers left, but three hours later, police
officers once more arrived at Mapp‘s home and knocked on the door. When Mapp did not
immediately answer, the police forced the door open and entered. Coming down the stairs
from the second floor, Mapp demanded to see a search warrant. One of the officers held up
a piece of paper, claiming that it was a warrant. Mapp snatched the piece of paper and
stuffed it into her blouse. After a scuffle, the officers recovered the paper and handcuffed
Mapp. The police then began a search of the entire house. Mapp's attorney arrived but was
refused entrance or access to his client. The police found no bombing suspect and no
evidence of an illegal gambling operation. However,
in the course of their search, they turned up some obscene material, possession of which
was at this time a violation of Ohio law. At her trial in an Ohio state court on a charge of
possession of obscene literature, no search warrant was ever produced, nor was the failure
to produce one explained. Following her conviction, Mapp appealed to an intermediate
Ohio appellate court and then to the Ohio Supreme Court. Both Ohio courts upheld her
conviction, and she then appealed to the U. S. Supreme Court.
Is evidence seized illegally in violation of the Fourth Amendment admissible
against the accused in a state court?
48
Mapp v. Ohio (1961)
Decision
By a 6-3 vote, the U. S. Supreme Court overturned Mapp‘s conviction. In his opinion for the
Court, Justice Tom Clark wrote: ―Today we once again examine Wolf's constitutional
documentation of the right to privacy free from unreasonable state intrusion, and, after its
dozen years on our books, are led by it to close the only courtroom door remaining open to
evidence secured by official lawlessness in flagrant abuse of that basic right, reserved to all
persons as a specific guarantee against that very same unlawful conduct. We hold that all
evidence obtained by searches and seizures in violation of the Constitution is, by that same
authority, inadmissible in a state court.‖ In addition, he asserts, ―… our holding that the
exclusionary rule is an essential part of both the Fourth and Fourteenth Amendments is not
only the logical dictate of prior cases, but it also makes good sense. There is no war between
the Constitution and common sense. Presently, a federal prosecutor may make no use of
evidence illegally seized, but a State's attorney across the street may, although he
supposedly is operating under the enforceable prohibitions of the same Amendment. Thus
the State, by admitting evidence unlawfully seized, serves to encourage disobedience to the
Federal Constitution which it is bound to uphold.‖ Finally, Justice Clark writes: ―There are
those who say, as did Justice (then Judge) Cardozo, that under our constitutional
exclusionary doctrine ‗[t]he criminal is to go free because the constable has blundered.‘ ... In
some cases this will undoubtedly be the result. But, as was said in Elkins, ‗there is another
consideration--the imperative of judicial integrity.‘ ... The criminal goes free, if he must, but it
is the law that sets him free. … Nothing can destroy a government more quickly than its
failure to observe its own laws, or worse, its disregard of the charter of its own existence.‖
Justice Hugo Black concurred and in a concurring opinion wrote: ‖Reflection on the problem,
however, in the light of cases coming before the Court since Wolf, has led me to conclude
that when the Fourth Amendment's ban against unreasonable searches and seizures is
considered together with the Fifth Amendment's ban against compelling self-incrimination, a
constitutional basis emerges which not only justifies but actually requires the exclusionary
rule.‖
Justice William O. Douglas concurred and in a concurring opinion wrote: ―As stated in the
Weeks case, if evidence seized in violation of the Fourth Amendment can be used against an
accused, ‗his right to be secure against such searches and seizures is of no value, and ...
might as well be stricken from the Constitution.‘‖
Justice John Marshall Harlan III dissented and in a dissenting opinion, joined by Justices Felix
Frankfurter and Charles Whittaker, wrote: ―In overruling the Wolf case the Court, in my
opinion, has forgotten the sense of judicial restraint which, with due regard for stare decisis, is
one element that should enter into deciding whether a past decision of this Court should be
overruled. Apart from that I also believe that the Wolf rule represents sounder Constitutional
doctrine than the new rule which now replaces it.‖ In addition, Harlan asserted that the federal
system permits the states to manage their problems of criminal law enforcement without the
49
Supreme Court's stamp of approval or disapproval: ―Problems of criminal law
enforcement vary widely from State to State. … For us the question remains, as it has
always been, one of state power, not one of passing judgment on the wisdom of one
state course or another. In my view this Court should continue to forbear from fettering
the States with an adamant rule which may embarrass them in coping with their own
peculiar problems in criminal law enforcement.‖
50
Miranda v. Arizona
384 U.S. 436 (1966)
In March,1963, an eighteen-year-old female in Phoenix, Arizona, was kidnapped and raped.
After investigation, the police arrested Ernesto Miranda at his Phoenix home. At the police
station, Miranda was placed in a lineup. The victim could not positively identify Miranda as
the individual who had raped her. The police then took Miranda into an interrogation room
and questioned him for two hours, after which he confessed to having committed the crime.
Although detectives said they neither threatened Miranda nor promised him leniency,
Miranda told a different story. After Miranda‘s confession, detectives brought the victim into
the room. One of the detectives asked Miranda if this was the person he had raped.
Miranda looked at her and said, ―That‘s the girl.‖ When asked to put his confession into a
written statement, Miranda agreed. Across the top of the statement was a typewritten
disclaimer saying that the suspect was confessing voluntarily, without threats or promises of
immunity, and ―with full knowledge of my legal rights, understanding any statement I make
may be used against me.‖ He signed the disclaimer. Miranda asserted that he repeatedly
asked for a lawyer during the questioning but was refused. The written confession was
introduced as evidence in an Arizona trial court where Miranda was tried and found guilty of
kidnapping and rape and sentenced to twenty to thirty years in prison. His conviction was
upheld by the Arizona Supreme Court. When he appealed to the U. S. Supreme Court,
Miranda did not appeal on the basis that his confession was false or coerced. Instead, he
argued that he would not have confessed if he had been advised of his right to remain silent
and of his right to an attorney. Lawyers for the state argued that Miranda could have asked
for an attorney at any time but had not done so and that his confession had been freely
given.
Issue: Under the Fifth Amendment‘s privilege against self-incrimination and the
Fourteenth Amendment‘s due process of law clause, prior to any questioning
must a suspect taken into custody by the police be warned of certain rights?
51
Miranda v. Arizona (1966)
Decision
By a 5-4 vote, the U. S. Supreme Court overturned Miranda's conviction, reasoning that his
Fourteenth Amendment right not to be deprived of liberty without due process of law had
been violated. In his opinion for the Court, Chief Justice Earl Warren wrote: ―The use of
physical brutality and violence is not, unfortunately, relegated to the past or to any part of
the country. Again we stress that the modern practice of in-custody interrogation is psychologically rather than physically oriented ... this Court has recognized that coercion can be
mental as well as physical, and that the blood of the accused is not the only hallmark of an
unconstitutional inquisition....‖ He then announced that in order for a suspect's rights to be
fully protected, certain safeguards must be employed: ―We hold that when an individual is
taken into custody or otherwise deprived of his freedom by the authorities and is subjected
to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege, and unless other fully effective means are
adopted to notify the person of his right of silence and to assure that the exercise of the right
will be scrupulously honored, the following measures are required. He must be warned
prior to any questioning that he has the right to remain silent, that anything he says can be
used against him in a court of law, that he has the right to the presence of an attorney, and
that if he cannot afford an attorney one will be appointed for him prior to any questioning if
he so desires. Opportunity to exercise these rights must be afforded to him throughout the
interrogation. After such warnings have been given, and such opportunity afforded him, the
individual may knowingly and intelligently waive these rights and agree to answer questions
or make a statement. But unless and until such warnings and waiver are demonstrated by
the prosecution at trial, no evidence obtained as a result of interrogation can be used
against him.‖
Justice John Marshall Harlan III dissented and in a dissenting opinion joined by Justices
Potter Stewart and Byron White wrote: … ―the Court portrays the evils of normal police
questioning in terms which I think are exaggerated. Society has always paid a stiff price for
law and order…‖
Justice Byron White also dissented and in a dissenting opinion joined by Justices Potter
Stewart and Tom Clark wrote: ―There is the not so subtle overtone of the opinion—that it is
inherently wrong for the police to gather evidence from the accused himself. And this is precisely the nub of this dissent. I see nothing wrong or immoral, and certainly nothing unconstitutional, with the police asking a suspect whom they have reasonable cause to arrest
whether or not he killed his wife or with confronting him with the evidence on which the arrest was based, at least where he has been plainly advised that he may remain completely
silent. … The most basic function of any Government is to provide for the security of the
individual and of his property. These ends of society are served by the criminal law which
for the most part is aimed at the prevention of crime.‖
52
FOLLOW-UP: Miranda was later retried, but this time the state did not introduce his
written confession since it had been taken without his having voluntarily waived what is
now called "the Miranda rights." However, other evidence was sufficient, and he was
convicted and sentenced to 20 to 30 years in prison. He was paroled in 1972 but was
again arrested while on parole in July 1974 on charges of possession of dangerous
drugs and a firearm. However, these charges were dropped. In 1978 Ernesto Miranda
was stabbed to death in a fight in a Phoenix bar. As police officers placed the man accused of killing Miranda in the back of their cruiser, one of them pulled out a small card
with words printed in English on one side and Spanish on the other and began to read:
―You have the right to remain silent………‖
53
Roe, et al. v. Wade
410 U. S. 113 (1973)
In 1970 Jane Roe (a pseudonym for an unmarried, pregnant woman) filed a class action suit
―on behalf of herself and all other women similarly situated‖ in a U. S. District Court in
Dallas, Texas, against Henry Wade, the District Attorney of Dallas County. She wished to
terminate her pregnancy by an abortion "performed by a competent, licensed physician,
under safe, clinical conditions." She was unable, however, to obtain a legal abortion in
Texas because Texas law, typical of laws in effect at that time in many states, made it a
felony criminal offense to obtain an abortion unless the mother‘s life was threatened by the
pregnancy. She stated that she could not afford to travel to another state where she could
obtain a legal abortion under safe conditions. She sought a declaratory judgment that the
Texas law was unconstitutional and an injunction restraining the District Attorney from
enforcing the law. A three-judge District Court held that ―the fundamental right of single
women and married persons to choose whether to have children is protected by the Ninth
Amendment through the Fourteenth Amendment" and that ―the Texas abortion law was void
on its face because unconstitutionally vague and constituted an overbroad infringement of
plaintiff's Ninth Amendment rights.‖ However, that court declined to issue the requested
injunction. Roe, et. al., then appealed the District Court‘s judgment denying the injunction
directly to the U. S. Supreme Court. At the same time, the District Attorney cross appealed
to the U. S. Supreme Court the District Court‘s judgment declaring Texas‘ abortion law
unconstitutional.
ISSUE: Does a state law which outlaws abortion unless the life of the mother is
endangered by the pregnancy violate the woman‘s constitutional rights under
the Ninth and Fourteenth Amendments?
54
Roe v. Wade (1973)
Decision
By a 7-2 vote, the U. S. Supreme Court upheld the District Court‘s judgment declaring the
Texas abortion law unconstitutional. The Court also ruled that it was unnecessary for it to
decide if the District Court was wrong in not issuing an injunction preventing the state from
enforcing its abortion law because the Court reasoned that the state would give full
recognition to the fact that the Supreme Court had declared its abortion law unconstitutional.
Justice Harry Blackmun wrote the opinion of the Court. Among other things, he discusses
the right of privacy relied on by the lower court in making its decision: ―[Although] the
Constitution does not explicitly mention any right of privacy ... the Court has recognized that
a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist
under the Constitution.... This right of privacy, whether it be founded in the Fourteenth
Amendment's concept of personal liberty and restrictions upon state action, as we feel it is,
or, as the District Court determined, in the Ninth Amendment's reservation of rights to the
people, is broad enough to encompass a woman's decision whether or not to terminate her
pregnancy.... We, therefore, conclude that the right of personal privacy includes the abortion
decision, but that this right is not unqualified and must be considered against important state
interests in regulation.‖ He also addresses the issue of whether a fetus is a ―person‖ within
the meaning of that word in the Fourteenth Amendment. Blackmun writes: “The Constitution
does not define ‗person‘ in so many words. … [T]he use of the word is such that it has
application only postnatally. … [This] persuades us that the word ‗person,‘ as used in the
Fourteenth Amendment, does not include the unborn....In areas other than criminal abortion,
the law has been reluctant to endorse any theory that life, as we recognize it, begins before
live birth or to accord legal rights to the unborn except in narrowly defined situations and
except when the rights are contingent upon live birth.... In short, the unborn have never
been recognized in the law as persons in the whole sense.” Blackmun summarizes what has
become known as ―the Trimester Test‖: ―A state criminal abortion statute of the current
Texas type, that excepts from criminality only a life-saving procedure on behalf of the
mother, without regard to pregnancy stage and without recognition of the other interests
involved, is violative of the Due Process Clause of the Fourteenth Amendment. a) For the
stage prior to approximately the end of the first trimester, the abortion decision and its
effectuation must be left to the medical judgment of the pregnant woman's attending
physician. b) For the stage subsequent to approximately the end of the first trimester, the
State, in promoting its interest in the health of the mother, may, if it chooses, regulate the
abortion procedure in ways that are reasonably related to maternal health. c) For the stage
subsequent to viability, the State in promoting its interest in the potentiality of human life
may, if it chooses, regulate and even proscribe, abortion except where it is necessary, in
appropriate medical judgment, for the preservation of the life or health of the mother.‖
Justice Byron White dissented and wrote: ―I find nothing in the language or history of the
Constitution to support the Court‘s judgment. The Court simply fashions and announces a
new constitutional right for pregnant mothers and, with scarcely any reason or authority for
its action, invests that right with sufficient substance to override most existing state abortion
statutes.‖
55
Justice William Rehnquist also dissented and wrote: ―I have difficulty in concluding, as
the Court does, that the right of ‗privacy‘ is involved in this case....The fact that a
majority of the States, reflecting after all the majority sentiment in those States, have
had restrictions on abortions for at least a century is a strong indication ... that the
asserted right to an abortion is not ‗so rooted in the traditions and conscience of our
people as to be ranked as fundamental.‘‖ Rehnquist concludes his dissenting opinion
in this way: ―The decision here to break pregnancy into three distinct terms and to
outline the permissible restrictions the state may impose in each one, for example,
partakes more of judicial legislation than it does of a determination of the intent of the
drafters of the Fourteenth Amendment.‖
56
Schenck v. United States
247 U. S. 47 (1919)
After the United States entered World War I in 1917, the U. S. Congress instituted a military
draft when it passed the Selective Service Act. In order to protect the war effort, Congress
also passed the Espionage Act of 1917. Among other things, this law made it a crime to
cause or attempt to cause insubordination in the military and naval forces or to obstruct the
recruitment or enlistment of persons into the military service of the United States.
Charles Schenck, the General Secretary of the Socialist Party, opposed United States
participation in World War I. He was arrested for violating the Espionage Act after 15,000
leaflets urging resistance to the draft were sent to men who had been drafted. The leaflets
were traced to Socialist Party headquarters. On the front of the leaflet the first section of the
Thirteenth Amendment to the U. S. Constitution which prohibits slavery or involuntary
servitude was printed. The leaflet asserted that the Selective Service Act violated the idea
embodied in the amendment and that a draftee was little better than a convict. In
impassioned language it suggested that conscription was despotism in its worst form and a
monstrous wrong against humanity in the interest of ―Wall Street‘s chosen few.‖ It urged
draftees not to submit to intimidation but, at least in form, confined itself to urging peaceful
measures such as petitioning for repeal of the Selective Service Act. Part of the leaflet urged
draftees to ―Assert Your Rights.‖ It alleged that an individual violated the Constitution when
he or she refused to recognize ―your rights to assert your opposition to the draft.‖ It stated: ―If
you do not assert and support your rights, you are helping to deny or disparage rights which
it is the solemn duty of all citizens and residents of the United States to retain.‖ It described
even silent consent to the draft law as helping to support an infamous conspiracy. The
leaflet concluded: ―You must do your share to maintain, support, and uphold the rights of the
people of this country.‖
Although Schenck denied responsibility for sending the leaflets, he was found guilty in a U.
S. District Court. He appealed his conviction and claimed that the leaflets should be
protected as free speech. .
ISSUE: Is a leaflet sent to draftees when the nation is at war urging them
peacefully to resist the draft protected by the freedom of speech and press of
the First Amendment?
57
Schenck v. United States (1919)
Decision
A unanimous Supreme Court upheld Schenck‘s conviction. Justice Oliver Wendell Holmes
wrote for the Court: ―We admit that in many places and in ordinary times the defendants in
saying all that was said in the circular would have been within their constitutional rights. But
the character of every act depends upon the circumstances in which it is done
(emphasis added). The most stringent protection of free speech would not protect a man in
falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an
injunction against uttering words that may have all the effect of force. The question in every
case is whether the words used are used in such circumstances and are of such a nature
as to create a clear and present danger (emphasis added) that they will bring about the
substantive evils that Congress has a right to prevent. It is a question of proximity and
degree. When a nation is at war many things that might be said in time of peace are such a
hindrance to its effort that their utterance will not be endured so long as men fight and that
no Court could regard them as protected by any constitutional right.”
58
Texas v. Gregory Lee Johnson
491 U.S. 397 (1989)
In August 1984, the Republican National Convention was held in Dallas, Texas. On August
22, a group of about 100 demonstrators marched through the streets of Dallas to dramatize
the consequences of nuclear war and protest certain policies of the Reagan administration.
Gregory Johnson was a leader and organizer of the group. When the group reached Dallas
City Hall, an American flag was handed to Johnson who soaked it in kerosene and set it on
fire. Several individuals who witnessed the burning indicated that they were offended by the
action. However, no violence occurred, and no one was physically injured or threatened.
Shortly after the event, police arrived and arrested Johnson. He was charged with
desecration of a venerated object in violation of the Texas Penal Code.
Johnson was convicted in a Texas District Court, sentenced to one year in jail, and
assessed a $2,000 fine. A Texas Court of Appeals upheld his conviction. The Texas Court
of Criminal Appeals, however, reversed the judgment of the lower court and thus overturned
Johnson‘s conviction. That court reasoned that the Texas statute was not written narrowly
enough to encompass only those flag-burnings that were likely to result in a serious
disturbance of the peace. The court also found that the flag's special status was not
endangered by Johnson's conduct. The State of Texas then appealed to the United States
Supreme Court. .
ISSUE: Is the burning of the American flag as a political protest freedom of
speech protected by the First Amendment?
59
Texas v. Gregory Lee Johnson (1989)
Decision
By a 5-4 vote the Supreme Court upheld the judgment of the Texas Court of Criminal
Appeals overturning Johnson‘s conviction. A rare coalition comprised the majority: Justices
William Brennan, Harry Blackmun, Anthony Kennedy, Thurgood Marshall, and Antonin
Scalia. Speaking for the majority, Justice Brennan wrote: "We do not consecrate the flag by
punishing its desecration, for in doing so we dilute the freedom that this cherished emblem
represents." He went on to indicate that the majority believed that Johnson was being
prosecuted for voicing his disapproval of United States policies and that this type of
expression may not be prohibited simply because society does not agree with the idea. The
majority felt that the flag's place would be strengthened instead of weakened by the Court‘s
decision. Brennan wrote, "The way to preserve the flag's special role is not to punish those
who feel differently about these matters. It is to persuade them that they are wrong." He
indicated that the government generally has more freedom in restricting expressive conduct
than in restricting the written or spoken word but that First Amendment protection doesn't
end at the written or spoken word. He wrote: "Government may not prohibit the expression
of an idea simply because society finds the idea itself offensive or disagreeable ...."
In a concurring opinion, Justice Anthony Kennedy wrote: “The hard fact is that sometimes
we must make decisions we do not like. We make them because they are right, right in the
sense that the law and the Constitution, as we see them, compel the result.” He agreed that
the flag holds a place of honor but asserted that the Constitution does not set this symbol
aside in a special category.
Chief Justice William Rehnquist dissented and wrote a dissenting opinion which was joined
by Justices Byron White and Sandra Day O'Connor. He wrote: “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 a way respondent Johnson
did here.” Rehnquist further stated that Johnson could have made any verbal denunciation
of the flag that he wished and could even have burned it privately without breaking the law.
Justice John Paul Stevens also dissented and read his dissenting opinion from the bench.
Hewrote: “… sanctioning the public desecration of the flag will tarnish its value -- both for
those who cherish the ideas for which it waves and for those who desire to don the robes of
martyrdom by burning it.... A country's flag is a symbol of more than "nationhood and
national unity."
60