Dokument 1 von 1

BROWN ET AL. v. BOARD OF EDUCATION OF TOPEKA ET AL.

No. 1

SUPREME COURT OF THE UNITED STATES

347 U.S. 483; 74 S. Ct. 686; 98 L. Ed. 873; 1954 U.S. LEXIS 2094; 53 Ohio Op. 326;

38 A.L.R.2d 1180

December 9, 1952, Argued
May 17, 1954, Decided

SUBSEQUENT HISTORY: Reargued December 8, 1953.

PRIOR HISTORY: APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KAN-
SAS. *

* Together with No. 2, Briggs et al. v. Elliott et al., on appeal from the United States District Court for the Eastern District of South Caro-
lina, argued December 9-10, 1952, reargued December 7-8, 1953; No. 4, Davis et al. v. County School Board of Prince Edward County,
Virginia, et al., on appeal from the United States District Court for the Eastern District of Virginia, argued December 10, 1952, reargued De-
cember 7-8, 1953; and No. 10, Gebhart et al. v. Belton et al., on certiorari to the Supreme Court of Delaware, argued December 11, 1952, re-
argued December 9, 1953.

DISPOSITION: The Court overturned Plessy v. Ferguson and the “separate but equal” doctrine, finding that it had no
place in public education. Segregation was a denial of the equal protection of the laws under the Fourteenth Amend-
ment. Separate educational facilities were inherently unequal.

OPINION BY: WARREN

OPINION

[*486] [**687] [***876] MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.

[1]

These cases come to us from the States of Kansas, South Carolina, Virginia, and Delaware. They are premised on
different facts and different local conditions, but a common legal question justifies their consideration together in this
consolidated opinion. 1

1 In the Kansas case, Brown v. Board of Education, the plaintiffs are Negro children of elementary school age residing in Topeka. They
brought this action in the United States District Court for the District of Kansas to enjoin enforcement of a Kansas statute which permits, but
does not require, cities of more than 15,000 population to maintain separate school facilities for Negro and white students. Kan. Gen. Stat. §
72-1724 (1949). Pursuant to that authority, the Topeka Board of Education elected to establish segregated elementary schools. Other public
schools in the community, however, are operated on a nonsegregated basis. The three-judge District Court, convened under 28 U. S. C. §§
2281 and 2284, found that segregation in public education has a detrimental effect upon Negro children, but denied relief on the ground that
the Negro and white schools were substantially equal with respect to buildings, transportation, curricula, and educational qualifications of
teachers. 98 F.Supp. 797. The case is here on direct appeal under 28 U. S. C. § 1253.

In the South Carolina case, Briggs v. Elliott, the plaintiffs are Negro children of both elementary and high school age residing in Clarendon
County. They brought this action in the United States District Court for the Eastern District of South Carolina to enjoin enforcement of pro-
visions in the state constitution and statutory code which require the segregation of Negroes and whites in public schools. S. C. Const., Art.
XI, § 7; S. C. Code § 5377 (1942). The three-judge District Court, convened under 28 U. S. C. §§ 2281 and 2284, denied the requested re-
lief. The court found that the Negro schools were inferior to the white schools and ordered the defendants to begin immediately to equalize
the facilities. But the court sustained the validity of the contested provisions and denied the plaintiffs admission to the white schools during
the equalization program. 98 F.Supp. 529. This Court vacated the District Court’s judgment and remanded the case for the purpose of ob-
taining the court’s views on a report filed by the defendants concerning the progress made in the equalization program. 342 U.S. 350. On

remand, the District Court found that substantial equality had been achieved except for buildings and that the defendants were proceeding to
rectify this inequality as well. 103 F.Supp. 920. The case is again here on direct appeal under 28 U. S. C. § 1253.

In the Virginia case, Davis v. County School Board, the plaintiffs are Negro children of high school age residing in Prince Edward County.
They brought this action in the United States District Court for the Eastern District of Virginia to enjoin enforcement of provisions in the
state constitution and statutory code which require the segregation of Negroes and whites in public schools. Va. Const., § 140; Va. Code §
22-221 (1950). The three-judge District Court, convened under 28 U. S. C. §§ 2281 and 2284, denied the requested relief. The court found
the Negro school inferior in physical plant, curricula, and transportation, and ordered the defendants forthwith to provide substantially equal
curricula and transportation and to “proceed with all reasonable diligence and dispatch to remove” the inequality in physical plant. But, as in
the South Carolina case, the court sustained the validity of the contested provisions and denied the plaintiffs admission to the white schools
during the equalization program. 103 F.Supp. 337. The case is here on direct appeal under 28 U. S. C. § 1253.

In the Delaware case, Gebhart v. Belton, the plaintiffs are Negro children of both elementary and high school age residing in New Castle
County. They brought this action in the Delaware Court of Chancery to enjoin enforcement of provisions in the state constitution and statu-
tory code which require the segregation of Negroes and whites in public schools. Del. Const., Art. X, § 2; Del. Rev. Code § 2631 (1935).
The Chancellor gave judgment for the plaintiffs and ordered their immediate admission to schools previously attended only by white chil-
dren, on the ground that the Negro schools were inferior with respect to teacher training, pupil-teacher ratio, extracurricular activities, physi-
cal plant, and time and distance involved in travel. 87 A. 2d 862. The Chancellor also found that segregation itself results in an inferior
education for Negro children (see note 10, infra), but did not rest his decision on that ground. Id., at 865. The Chancellor’s decree was af-
firmed by the Supreme Court of Delaware, which intimated, however, that the defendants might be able to obtain a modification of the de-
cree after equalization of the Negro and white schools had been accomplished. 91 A. 2d 137, 152. The defendants, contending only that the
Delaware courts had erred in ordering the immediate admission of the Negro plaintiffs to the white schools, applied to this Court for certio-
rari. The writ was granted, 344 U.S. 891. The plaintiffs, who were successful below, did not submit a cross-petition.

[*487] [**688] [***877] In each of the cases, minors of the Negro race, through their legal representatives, seek the
aid of the courts in obtaining admission to the public schools of their community on a nonsegregated basis. In each
instance, [*488] they had been denied admission to schools attended by white children under laws requiring or permit-
ting segregation according to race. This segregation was alleged to deprive the plaintiffs of the equal protection of the
laws under the Fourteenth Amendment. In each of the cases other than the Delaware case, a three-judge federal district
court denied relief to the plaintiffs on the so-called “separate but equal” doctrine announced by this Court in Plessy v.
Ferguson, 163 U.S. 537. Under that doctrine, equality of treatment is accorded when the races are provided substan-
tially equal facilities, even though these facilities be separate. In the Delaware case, the Supreme Court of Delaware
adhered to that doctrine, but ordered that the plaintiffs be admitted to the white schools because of their superiority to
the Negro schools.

The plaintiffs contend that segregated public schools are not “equal” and cannot be made “equal,” and that hence they
are deprived of the equal protection of the laws. Because of the obvious importance of the question presented, the Court
took jurisdiction. 2 Argument was heard in the 1952 Term, and reargument was heard this Term on certain questions
propounded by the Court. 3

2 344 U.S. 1, 141, 891.

3 345 U.S. 972. The Attorney General of the United States participated both Terms as amicus curiae.

[*489] [2]Reargument was largely devoted to the circumstances surrounding the adoption of the Fourteenth Amend-
ment in 1868. It covered exhaustively consideration of the Amendment in Congress, ratification by the states, then
existing practices [***878] in racial segregation, and the views of proponents and opponents of the Amendment. This
discussion and our own investigation convince us that, although these sources cast some light, it [**689] is not enough
to resolve the problem with which we are faced. At best, they are inconclusive. The most avid proponents of the post-
War Amendments undoubtedly intended them to remove all legal distinctions among “all persons born or naturalized in
the United States.” Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amend-
ments and wished them to have the most limited effect. What others in Congress and the state legislatures had in mind
cannot be determined with any degree of certainty.

An additional reason for the inconclusive nature of the Amendment’s history, with respect to segregated schools, is the
status of public education at that time. 4 In the South, the movement toward free common schools, supported [*490] by
general taxation, had not yet taken hold. Education of white children was largely in the hands of private groups. Edu-
cation of Negroes was almost nonexistent, and practically all of the race were illiterate. In fact, any education of Ne-
groes was forbidden by law in some states. Today, in contrast, many Negroes have achieved outstanding success in the
arts and sciences as well as in the business and professional world. It is true that public school education at the time of

the Amendment had advanced further in the North, but the effect of the Amendment on Northern States was generally
ignored in the congressional debates. Even in the North, the conditions of public education did not approximate those
existing today. The curriculum was usually rudimentary; ungraded schools were common in rural areas; the school
term was but three months a year in many states; and compulsory school attendance was virtually unknown. As a con-
sequence, it is not surprising that there should be so little in the history of the Fourteenth Amendment relating to its
intended effect on public education.

4 For a general study of the development of public education prior to the Amendment, see Butts and Cremin, A History of Education in
American Culture (1953), Pts. I, II; Cubberley, Public Education in the United States (1934 ed.), cc. II-XII. School practices current at the
time of the adoption of the Fourteenth Amendment are described in Butts and Cremin, supra, at 269-275; Cubberley, supra, at 288-339, 408-
431; Knight, Public Education in the South (1922), cc. VIII, IX. See also H. Ex. Doc. No. 315, 41st Cong., 2d Sess. (1871). Although the
demand for free public schools followed substantially the same pattern in both the North and the South, the development in the South did not
begin to gain momentum until about 1850, some twenty years after that in the North. The reasons for the somewhat slower development in
the South (e. g., the rural character of the South and the different regional attitudes toward state assistance) are well explained in Cubberley,
supra, at 408-423. In the country as a whole, but particularly in the South, the War virtually stopped all progress in public education. Id., at
427-428. The low status of Negro education in all sections of the country, both before and immediately after the War, is described in Beale,
A History of Freedom of Teaching in American Schools (1941), 112-132, 175-195. Compulsory school attendance laws were not generally
adopted until after the ratification of the Fourteenth Amendment, and it was not until 1918 that such laws were in force in all the states.
Cubberley, supra, at 563-565.

In the first cases in this Court construing the Fourteenth Amendment, decided shortly after its adoption, the Court in-
terpreted it as proscribing all state-imposed discriminations against the Negro race. 5 The doctrine of [*491] “separate
but [**690] equal” did not make its appearance [***879] in this Court until 1896 in the case of Plessy v. Ferguson,
supra, involving not education but transportation. 6 American courts have since labored with the doctrine for over half a
century. In this Court, there have been six cases involving the “separate but equal” doctrine in the field of public educa-
tion. 7 In Cumming v. County Board of Education, 175 U.S. 528, and Gong Lum v. Rice, 275 U.S. 78, the validity of
the doctrine itself was not challenged. 8 In more recent cases, all on the graduate school [*492] level, inequality was
found in that specific benefits enjoyed by white students were denied to Negro students of the same educational qualifi-
cations. Missouri ex rel. Gaines v. Canada, 305 U.S. 337; Sipuel v. Oklahoma, 332 U.S. 631; Sweatt v. Painter, 339
U.S. 629; McLaurin v. Oklahoma State Regents, 339 U.S. 637. In none of these cases was it necessary to re-examine
the doctrine to grant relief to the Negro plaintiff. And in Sweatt v. Painter, supra, the Court expressly reserved deci-
sion on the question whether Plessy v. Ferguson should be held inapplicable to public education.

5 Slaughter-House Cases, 16 Wall. 36, 67-72 (1873); Strauder v. West Virginia, 100 U.S. 303, 307-308 (1880):

“It ordains that no State shall deprive any person of life, liberty, or property, without due process of law, or deny to any person within its ju-
risdiction the equal protection of the laws. What is this but declaring that the law in the States shall be the same for the black as for the
white; that all persons, whether colored or white, shall stand equal before the laws of the States, and, in regard to the colored race, for whose
protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color? The
words of the amendment, it is true, are prohibitory, but they contain a necessary implication of a positive immunity, or right, most valuable
to the colored race, — the right to exemption from unfriendly legislation against them distinctively as colored, — exemption from legal dis-
criminations, implying inferiority in civil society, lessening the security of their enjoyment of the rights which others enjoy, and discrimina-
tions which are steps towards reducing them to the condition of a subject race.”

See also Virginia v. Rives, 100 U.S. 313, 318 (1880); Ex parte Virginia, 100 U.S. 339, 344-345 (1880).

6 The doctrine apparently originated in Roberts v. City of Boston, 59 Mass. 198, 206 (1850), upholding school segregation against attack as
being violative of a state constitutional guarantee of equality. Segregation in Boston public schools was eliminated in 1855. Mass. Acts
1855, c. 256. But elsewhere in the North segregation in public education has persisted in some communities until recent years. It is apparent
that such segregation has long been a nationwide problem, not merely one of sectional concern.

7 See also Berea College v. Kentucky, 211 U.S. 45 (1908).

8 In the Cumming case, Negro taxpayers sought an injunction requiring the defendant school board to discontinue the operation of a high
school for white children until the board resumed operation of a high school for Negro children. Similarly, in the Gong Lum case, the plain-
tiff, a child of Chinese descent, contended only that state authorities had misapplied the doctrine by classifying him with Negro children and
requiring him to attend a Negro school.

In the instant cases, that question is directly presented. Here, unlike Sweatt v. Painter, there are findings below that the
Negro and white schools involved have been equalized, or are being equalized, with respect to buildings, curricula,
qualifications and salaries of teachers, and other “tangible” factors. 9 Our decision, therefore, cannot turn on merely a
[***880] comparison of these tangible factors [**691] in the Negro and white schools involved in each of the cases.
We must look instead to the effect of segregation itself on public education.

9 In the Kansas case, the court below found substantial equality as to all such factors. 98 F.Supp. 797, 798. In the South Carolina case, the
court below found that the defendants were proceeding “promptly and in good faith to comply with the court’s decree.” 103 F.Supp. 920,
921. In the Virginia case, the court below noted that the equalization program was already “afoot and progressing” (103 F.Supp. 337, 341);
since then, we have been advised, in the Virginia Attorney General’s brief on reargument, that the program has now been completed. In the
Delaware case, the court below similarly noted that the state’s equalization program was well under way. 91 A. 2d 137, 149.

[3]

In approaching this problem, we cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896
when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its
present place in American life throughout [*493] the Nation. Only in this way can it be determined if segregation in
public schools deprives these plaintiffs of the equal protection of the laws.

[4]

Today, education is perhaps the most important function of state and local governments. Compulsory school attendance
laws and the great expenditures for education both demonstrate our recognition of the importance of education to our
democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed
forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cul-
tural values, in preparing him for later professional training, and in helping him to adjust normally to his environment.
In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity
of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made avail-
able to all on equal terms.

[5]

We come then to the question presented: Does [HN1] segregation of children in public schools solely on the basis of
race, even though the physical facilities and other “tangible” factors may be equal, deprive the children of the minority
group of equal educational opportunities? We believe that it does.

In Sweatt v. Painter, supra, in finding that [HN2] a segregated law school for Negroes could not provide them equal
educational opportunities, this Court relied in large part on “those qualities which are incapable of objective measure-
ment but which make for greatness in a law school.” In McLaurin v. Oklahoma State Regents, supra, the Court, [HN3]
in requiring that a Negro admitted to a white graduate school be treated like all other students, again resorted to intangi-
ble considerations: “. . . his ability to study, to engage in discussions and exchange views with other students, and, in
general, to learn his profession.” [*494] Such considerations apply with added force to children in grade and high
schools. 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. The effect of this separation on their educational opportunities was well stated by a finding in the Kansas case
by a court which nevertheless felt compelled to rule against the Negro plaintiffs:

[HN4] “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 to deprive [***881] them of some of the
benefits they would receive in a racial[ly] integrated school system.” 10

[**692] Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding
is amply supported by modern authority. 11 Any language [*495] in Plessy v. Ferguson contrary to this finding is re-
jected.

10 A similar finding was made in the Delaware case: “I conclude from the testimony that in our Delaware society, State-imposed segregation
in education itself results in the Negro children, as a class, receiving educational opportunities which are substantially inferior to those avail-
able to white children otherwise similarly situated.” 87 A. 2d 862, 865.

11 K. B. Clark, Effect of Prejudice and Discrimination on Personality Development (Midcentury White House Conference on Children and
Youth, 1950); Witmer and Kotinsky, Personality in the Making (1952), c. VI; Deutscher and Chein, The Psychological Effects of Enforced
Segregation: A Survey of Social Science Opinion, 26 J. Psychol. 259 (1948); Chein, What are the Psychological Effects of Segregation Un-
der Conditions of Equal Facilities?, 3 Int. J. Opinion and Attitude Res. 229 (1949); Brameld, Educational Costs, in Discrimination and Na-
tional Welfare (MacIver, ed., 1949), 44-48; Frazier, The Negro in the United States (1949), 674-681. And see generally Myrdal, An Ameri-
can Dilemma (1944).

[6]

[HN5] 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. This disposition makes unnecessary any discussion whether such
segregation also violates the Due Process Clause of the Fourteenth Amendment. 12

12 See Bolling v. Sharpe, post, p. 497, concerning the Due Process Clause of the Fifth Amendment.

Because these are class actions, because of the wide applicability of this decision, and because of the great variety of
local conditions, the formulation of decrees in these cases presents problems of considerable complexity. On reargu-
ment, the consideration of appropriate relief was necessarily subordinated to the primary question — the constitutionality
of segregation in public education. We have now announced that such segregation is a denial of the equal protection of
the laws. In order that we may have the full assistance of the parties in formulating decrees, the cases will be restored to
the docket, and the parties are requested to present further argument on Questions 4 and 5 previously propounded by the
Court for the reargument this Term. 13 The Attorney General [*496] of the United [***882] States is again invited to
participate. The Attorneys General of the states requiring or permitting segregation in public education will also be
permitted to appear as amici curiae upon request to do so by September 15, 1954, and submission of briefs by October
1, 1954. 14

13 “4. Assuming it is decided that segregation in public schools violates the Fourteenth Amendment

“(a) would a decree necessarily follow providing that, within the limits set by normal geographic school districting, Negro children should
forthwith be admitted to schools of their choice, or

“(b) may this Court, in the exercise of its equity powers, permit an effective gradual adjustment to be brought about from existing segregated
systems to a system not based on color distinctions?

“5. On the assumption on which questions 4 (a) and (b) are based, and assuming further that this Court will exercise its equity powers to the
end described in question 4 (b),

“(a) should this Court formulate detailed decrees in these cases;

“(b) if so, what specific issues should the decrees reach;

“(c) should this Court appoint a special master to hear evidence with a view to recommending specific terms for such decrees;

“(d) should this Court remand to the courts of first instance with directions to frame decrees in these cases, and if so what general directions
should the decrees of this Court include and what procedures should the courts of first instance follow in arriving at the specific terms of
more detailed decrees?”

14 See Rule 42, Revised Rules of this Court (effective July 1, 1954).

It is so ordered.

Class 11+ -Burnham,_339-351.pdf

Hustler Magazine, Inc. v. Falwell

February 24, 1988

CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.

Petitioner Hustler Magazine, Inc., is a magazine of nationwide circulation. Respondent Jerry Falwell,

a nationally known minister who has been active as a commentator on politics and public affairs,

sued petitioner and its publisher, petitioner Larry Flynt, to recover damages for invasion of privacy,

libel, and intentional infliction of emotional distress. The District Court directed a verdict against

respondent on the privacy claim, and submitted the other two claims to a jury. The jury found for

petitioners on the defamation claim, but found for respondent on the claim for intentional infliction

of emotional distress and awarded damages. We now consider whether this award is consistent with

the First and Fourteenth Amendments of the United States Constitution.

The inside front cover of the November, 1983, issue of Hustler Magazine featured a “parody” of an

advertisement for Campari Liqueur that contained the name and picture of respondent and was

entitled “Jerry Falwell talks about his first time.” This parody was modeled after actual Campari ads

that included interviews with various celebrities about their “first times.” Although it was apparent

by the end of each interview that this meant the first time they sampled Campari, the ads clearly

played on the sexual double entendre of the general subject of “first times.” Copying the form and

layout of these Campari ads, Hustler’s editors chose respondent as the featured celebrity and

drafted an alleged “interview” with him in which he states that his “first time” was during a drunken

incestuous rendezvous with his mother in an outhouse. The Hustler parody portrays respondent and

his mother as drunk and immoral, and suggests that respondent is a hypocrite who preaches only

when he is drunk. In small print at the bottom of the page, the ad contains the disclaimer, “ad

parody — not to be taken seriously.” The magazine’s table of contents also lists the ad as “Fiction; Ad

and Personality Parody.”

Soon after the November issue of Hustler became available to the public, respondent brought this

diversity action in the United States District Court for the Western District of Virginia against Hustler

Magazine, Inc., Larry C. Flynt, and Flynt Distributing Co., Inc. Respondent stated in his complaint that

publication of the ad parody in Hustler entitled him to recover damages for libel, invasion of privacy,

and intentional infliction of emotional distress. The case proceeded to trial. At the close of the

evidence, the District Court granted a directed verdict for petitioners on the invasion of privacy

claim. The jury then found against respondent on the libel claim, specifically finding that the ad

parody could not “reasonably be understood as describing actual facts about [respondent] or actual

events in which [he] participated.” The jury ruled for respondent on the intentional infliction of

emotional distress claim, however, and stated that he should be awarded $100,000 in compensatory

damages, as well as $50,000 each in punitive damages from petitioners. Petitioners’ motion for

judgment notwithstanding the verdict was denied.

On appeal, the United States Court of Appeals for the Fourth Circuit affirmed the judgment against

petitioners…

This case presents us with a novel question involving First Amendment limitations upon a State’s

authority to protect its citizens from the intentional infliction of emotional distress. We must decide

whether a public figure may recover damages for emotional harm caused by the publication of an ad

parody offensive to him, and doubtless gross and repugnant in the eyes of most. Respondent would

have us find that a State’s interest in protecting public figures from emotional distress is sufficient to

deny First Amendment protection to speech that is patently offensive and is intended to inflict

emotional injury, even when that speech could not reasonably have been interpreted as stating

actual facts about the public figure involved. This we decline to do.

At the heart of the First Amendment is the recognition of the fundamental importance of the free

flow of ideas and opinions on matters of public interest and concern.

“[T]he freedom to speak one’s mind is not only an aspect of individual liberty — and

thus a good unto itself — but also is essential to the common quest for truth and the

vitality of society as a whole.”

Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 503-504 (1984). We have

therefore been particularly vigilant to ensure that individual expressions of ideas remain free from

governmentally imposed sanctions. The First Amendment recognizes no such thing as a “false” idea.

As Justice Holmes wrote,

when men have realized that time has upset many fighting faiths, they may come

to believe even more than they believe the very foundations of their own conduct

that the ultimate good desired is better reached by free trade in ideas — that the

best test of truth is the power of the thought to get itself accepted in the

competition of the market. . . .

Abrams v. United States, 250 U.S. 616, 630 (1919) (dissenting opinion).

The sort of robust political debate encouraged by the First Amendment is bound to produce speech

that is critical of those who hold public office or those public figures who are intimately involved in

the resolution of important public questions or, by reason of their fame, shape events in areas of

concern to society at large. Justice Frankfurter put it succinctly in Baumgartner, when he said that

“[o]ne of the prerogatives of American citizenship is the right to criticize public men and measures.”

Such criticism, inevitably, will not always be reasoned or moderate; public figures as well as public

officials will be subject to “vehement, caustic, and sometimes unpleasantly sharp attacks.”

Of course, this does not mean that any speech about a public figure is immune from sanction in the

form of damages. Since New York Times Co. v. Sullivan, we have consistently ruled that a public

figure may hold a speaker liable for the damage to reputation caused by publication of a defamatory

falsehood, but only if the statement was made “with knowledge that it was false or with reckless

disregard of whether it was false or not.” False statements of fact are particularly valueless; they

interfere with the truthseeking function of the marketplace of ideas, and they cause damage to an

individual’s reputation that cannot easily be repaired by counterspeech, however persuasive or

effective. But even though falsehoods have little value in and of themselves, they are “nevertheless

inevitable in free debate,” and a rule that would impose strict liability on a publisher for false factual

assertions would have an undoubted “chilling” effect on speech relating to public figures that does

have constitutional value. Freedoms of expression require “breathing space.” This breathing space is

provided by a constitutional rule that allows public figures to recover for libel or defamation only

when they can prove both that the statement was false and that the statement was made with the

requisite level of culpability.

…

Generally speaking, the law does not regard the intent to inflict emotional distress as one which

should receive much solicitude, and it is quite understandable that most, if not all, jurisdictions have

chosen to make it civilly culpable where the conduct in question is sufficiently “outrageous.” But in

the world of debate about public affairs, many things done with motives that are less than admirable

are protected by the First Amendment. In Garrison v. Louisiana, we held that, even when a speaker

or writer is motivated by hatred or ill-will, his expression was protected by the First Amendment:

… Thus, while such a bad motive may be deemed controlling for purposes of tort liability in other

areas of the law, we think the First Amendment prohibits such a result in the area of public debate

about public figures…

Despite their sometimes caustic nature, from the early cartoon portraying George Washington as an

ass down to the present day, graphic depictions and satirical cartoons have played a prominent role

in public and political debate. Lincoln’s tall, gangling posture, Teddy Roosevelt’s glasses and teeth,

and Franklin D. Roosevelt’s jutting jaw and cigarette holder have been memorialized by political

cartoons with an effect that could not have been obtained by the photographer or the portrait artist.

From the viewpoint of history, it is clear that our political discourse would have been considerably

poorer without them.

Respondent contends, however, that the caricature in question here was so “outrageous” as to

distinguish it from more traditional political cartoons. There is no doubt that the caricature of

respondent and his mother published in Hustler is at best a distant cousin of the political cartoons

described above, and a rather poor relation at that…An “outrageousness” standard thus runs afoul

of our longstanding refusal to allow damages to be awarded because the speech in question may

have an adverse emotional impact on the audience. And, as we stated in FCC v. Pacifica Foundation:

[T]he fact that society may find speech offensive is not a sufficient reason for

suppressing it. Indeed, if it is the speaker’s opinion that gives offense, that

consequence is a reason for according it constitutional protection. [p56] For it is a

central tenet of the First Amendment that the government must remain neutral in

the marketplace of ideas.

Admittedly, these oft-repeated First Amendment principles, like other principles, are subject to

limitations. We recognized in Pacifica Foundation that speech that is “‘vulgar,’ ‘offensive,’ and

‘shocking'” is “not entitled to absolute constitutional protection under all circumstances.” 438 U.S. at

747. In Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), we held that a State could lawfully punish

an individual for the use of insulting “‘fighting’ words — those which by their very utterance inflict

injury or tend to incite an immediate breach of the peace.” Id. at 571-572. These limitations are but

recognition of the observation in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749,

758 (1985), that this Court has “long recognized that not all speech is of equal First Amendment

importance.” But the sort of expression involved in this case does not seem to us to be governed by

any exception to the general First Amendment principles stated above.

We conclude that public figures and public officials may not recover for the tort of intentional

infliction of emotional distress by reason of publications such as the one here at issue without

showing, in addition, that the publication contains a false statement of fact which was made with

“actual malice,” i.e., with knowledge that the statement was false or with reckless disregard as to

whether or not it was true…

Here it is clear that respondent Falwell is a “public figure” for purposes of First Amendment law. The

jury found against respondent on his libel claim when it decided that the Hustler ad parody could not

“reasonably be understood as describing actual facts about [respondent] or actual events in which

[he] participated…But, for reasons heretofore stated, this claim cannot, consistently with the First

Amendment, form a basis for the award of damages when the conduct in question is the publication

of a caricature such as the ad parody involved here. The judgment of the Court of Appeals is

accordingly

Reversed.

Class 8 – Snyder_v_Phelps.pdf

Supreme Court of the United States

Marbury v. Madison, 5 U.S. (1 Cranch) 137; 2 L. Ed. 60 (1803)

[CASE SUMMARY:

The applicant and two others contended that the late President of the United States had

nominated them to the Senate and that the Senate had advised and consented to their

appointments as justices of the peace. The commissions were signed by the late President and

the seal of the United States was affixed to the commissions by the Secretary of State. The

commissions were withheld from the applicants and they requested their delivery. The Court

granted a rule to show cause, requiring the Secretary to show cause why a mandamus should

not issue to direct him to deliver to the commissions. No cause was shown and the applicant

filed a motion for a mandamus. The Court determined that the applicant had a vested legal

right in his appointment because his commission had been signed by the President, sealed by

the Secretary of State, and the appointment was not revocable. The Court found that because

the applicant had a legal title to the office, the laws afforded him a remedy. However, the

Court held that § 13 of the Act of 1789, giving the Court authority to issue writs of

mandamus to an officer, was contrary to the Constitution as an act of original jurisdiction,

and therefore void.]

MR. JUSTICE MARSHALL delivered the opinion of the Court.

At the December Term, 1801, William Marbury, Dennis Ramsay, Robert Townsend Hooe,

and William Harper, by their counsel, [p138] severally moved the court for a rule to James

Madison, Secretary of State of the United States, to show cause why a mandamus should not

issue commanding him to cause to be delivered to them respectively their several

commissions as justices of the peace in the District of Columbia. This motion was supported

by affidavits of the following facts: that notice of this motion had been given to Mr. Madison;

that Mr. Adams, the late President of the United States, nominated the applicants to the

Senate for their advice and consent to be appointed justices of the peace of the District of

Columbia; that the Senate advised and consented to the appointments; that commissions in

due form were signed by the said President appointing them justices, &c., and that the seal of

the United States was in due form affixed to the said commissions by the Secretary of State;

that the applicants have requested Mr. Madison to deliver them their said commissions, who

has not complied with that request; and that their said commissions are withheld from them;

that the applicants have made application to Mr. Madison as Secretary of State of the United

States at his office, for information whether the commissions were signed and sealed as

aforesaid; that explicit and satisfactory information has not been given in answer to that

inquiry, either by the Secretary of State or any officer in the Department of State; that

application has been made to the secretary of the Senate for a certificate of the nomination of

the applicants, and of the advice and consent of the Senate, who has declined giving such a

certificate; whereupon a rule was made to show cause on the fourth day of this term. This rule

having been duly served, [p139]

Mr. Jacob Wagner and Mr. Daniel Brent, who had been summoned to attend the court, and

were required to give evidence, objected to be sworn, alleging that they were clerks in the

Department of State, and not bound to disclose any facts relating to the business or

transactions of the office.

The court ordered the witnesses to be sworn, and their answers taken in writing, but informed

them that, when the questions were asked, they might state their objections to answering each

particular question, if they had any.

Mr. Lincoln, who had been the acting Secretary of State, when the circumstances stated in the

affidavits occurred, was called upon to give testimony. He objected to answering. The

questions were put in writing.

The court said there was nothing confidential required to be disclosed. If there had been, he

was not obliged to answer it, and if he thought anything was communicated to him

confidentially, he was not bound to disclose, nor was he obliged to state anything which

would criminate himself.

The questions argued by the counsel for the relators were, 1. Whether the Supreme Court can

award the writ of mandamus in any case. 2. Whether it will lie to a Secretary of State, in any

case whatever. 3. Whether, in the present case, the Court may award a mandamus to James

Madison, Secretary of State.

OPINION

At the last term, on the affidavits then read and filed with the clerk, a rule was granted in this

case requiring the Secretary of State to show cause why a mandamus [p154] should not issue

directing him to deliver to William Marbury his commission as a justice of the peace for the

county of Washington, in the District of Columbia.

No cause has been shown, and the present motion is for a mandamus. The peculiar delicacy

of this case, the novelty of some of its circumstances, and the real difficulty attending the

points which occur in it require a complete exposition of the principles on which the opinion

to be given by the Court is founded.

These principles have been, on the side of the applicant, very ably argued at the bar. In

rendering the opinion of the Court, there will be some departure in form, though not in

substance, from the points stated in that argument.

In the order in which the court has viewed this subject, the following questions have been

considered and decided.

1. Has the applicant a right to the commission he demands?
2. If he has a right, and that right has been violated, do the laws of his country afford

him a remedy?

3. If they do afford him a remedy, is it a mandamus issuing from this court?

. . . It is . . . the opinion of the court,

That, by signing the commission of Mr. Marbury, the President of the United States

appointed him a justice of peace, for the county of Washington in the District of

Columbia; and that the seal of the United States, affixed thereto by the Secretary of

State, is conclusive testimony of the verity of the signature, and of the completion of

the appointment; and that the appointment conferred on him a legal right to the office

for the space of five years.

That, having this legal title to the office, he has a consequent right to the commission;

a refusal to deliver which, is a plain violation of that right, for which the laws of this

country afford him a remedy.

It remains to be enquired whether,

He is entitled to the remedy for which applies. This depends on,

1. The nature of the writ applied for and
2. The power of this court.

. . . This, then, is a plain case for mandamus, either to deliver the commission, or a copy of it

from the record; and it only remains to be enquired, whether it can issue from this court.

The act to establish the judicial courts of the United States authorizes 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.”

The Secretary of State, being a person holding an office under the authority of the United

States, is precisely within the letter of the description and if this court is not authorized to

issue a writ of mandamus to such an officer, it must be because the law is unconstitutional,

and therefore absolutely incapable of conferring the authority, and assigning the duties which

its words purport to confer and assign.

The Constitution vests the whole judicial power of the United States in one supreme court,

and such inferior courts as Congress shall, from time to time, ordain and establish. This

power is expressly extended to all cases arising under the laws of the United States; and,

consequently, in some form, may be exercised over the present case; because the right

claimed is given by a law of the United States.

In the distribution of this power it is declared that “the Supreme Court shall have original

jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those

in which a state shall be a party. In all other cases, the Supreme Court shall have appellate

jurisdiction.”

It has been insisted at the bar, that, as the original grant of jurisdiction to the Supreme and

inferior courts, is general, and the clause assigning original jurisdiction to the Supreme Court

contains no negative or restrictive words, the power remains to the legislature to assign

original jurisdiction to that court in other cases than those specified in the article which has

been recited; provided those cases belong to the judicial power of the United States.

If it had been intended to leave it in the discretion of the legislature to apportion the judicial

power between the Supreme and inferior courts according to the will of that body, it would

certainly have been useless to have proceeded further than to have defined the judicial power,

and the tribunals in which it should be vested. The subsequent part of the section is mere

surplusage, is entirely without meaning. If Congress remains at liberty to give this court

appellate jurisdiction, where the Constitution has declared their jurisdiction shall be original;

and original jurisdiction where the Constitution has declared it shall be appellate, the

distribution of jurisdiction made in the Constitution is form without substance.

Affirmative words are often, in their operation, negative of other objects than those affirmed;

and in this case, a negative or exclusive sense must be given to them, or they have no

operation at all.

It cannot he presumed that any clause in the Constitution is intended to be without effect;

and, therefore, such a construction is inadmissible unless the words require it.

. . . To enable this court, then to issue a mandamus, it must be shown to be an exercise of

appellate jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction.

It has been stated at the bar that the appellate jurisdiction may be exercised in a variety of

forms, and that, if it be the will of the legislature that a mandamus should be used for that

purpose, that will must be obeyed. This is true, yet the jurisdiction must be appellate, not

original.

It is the essential criterion of appellate jurisdiction that it revises and corrects the proceedings

in a cause already instituted, and does not create that cause. Although, therefore, a mandamus

may be directed to courts, yet to issue such a writ to an officer for the delivery of a paper is in

effect the same as to sustain an original action for that paper, and, therefore, seems not to

belong to appellate, but to original jurisdiction. Neither is it necessary, in such a case as this,

to enable the court to exercise its appellate jurisdiction.

The authority, therefore, given to the Supreme Court by the act establishing the judicial

courts of the United States, to issue writs of mandamus to public officers, appears not to be

warranted by the Constitution; and it becomes necessary to inquire whether a jurisdiction so

conferred can be exercised.

The question, whether an act repugnant to the Constitution can become the law of the land, is

a question deeply interesting to the United States; but, happily, not of an intricacy

proportioned to its interest. It seems only necessary to recognize certain principles, supposed

to have been long and well established, to decide it.

That the people have an original right to establish, for their future government, such

principles as, in their opinion, shall most conduce to their own happiness is the basis on

which the whole American fabric had been erected. The exercise of this original right is a

very great exertion; nor can it, nor ought it, to be frequently repeated. The principles,

therefore, so established, are deemed fundamental. And as the authority from which they

proceed is supreme, and can seldom act, they are designed to be permanent.

This original and supreme will organizes the government, and assigns to different

departments their respective powers. It may either stop here, or establish certain limits not to

be transcended by those departments.

The government of the United States is of the latter description. The powers of the legislature

are defined and limited; and that those limits may not be mistaken, or forgotten, the

Constitution is written. To what purpose are powers limited, and to what purpose is that

limitation committed to writing, if these limits may, at any time, be passed by those intended

to be restrained? The distinction between a government with limited and unlimited powers is

abolished if those limits do not confine the persons on whom they are imposed, and if acts

prohibited and acts allowed are of equal obligation. It is a proposition too plain to be

contested, that the Constitution controls any legislative act repugnant to it; or, that the

legislature may alter the Constitution by an ordinary act.

Between these alternatives there is no middle ground. The Constitution is either a superior

paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative

acts, and, like other acts, is alterable when the legislature shall please to alter it.

If the former part of the alternative be true, then a legislative act contrary to the Constitution

is not law: if the latter part be true, then written constitutions are absurd attempts on the part

of the people to limit a power in its own nature illimitable.

Certainly all those who have framed written constitutions contemplate them as forming the

fundamental and paramount law of the nation, and consequently, the theory of every such

government must be, that an act of the legislature, repugnant to the constitution, is void.

This theory is essentially attached to a written constitution, and is, consequently, to be

considered by this court as one of the fundamental principles of our society. It is not therefore

to be lost sight of in the further consideration of this subject.

If an act of the legislature, repugnant to the Constitution, is void, does it, notwithstanding its

invalidity, bind the courts, and oblige them to give it effect? Or, in other words, though it be

not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in

fact what was established in theory; and would seem at first view, an absurdity too gross to be

insisted on. It shall, however, receive a more attentive consideration.

It is emphatically the province and duty of the judicial department to say what the law is.

Those who apply the rule to particular cases must, of necessity, expound and interpret that

rule. If two laws conflict with each other, the courts must decide on the operation of each.

So if a law be in opposition to the Constitution; if both the law and the constitution apply to a

particular case, so that the court must either decide that case conformably to the law,

disregarding the Constitution; or conformably to the Constitution, disregarding the law; the

court must determine which of these conflicting rules governs the case. This is of the very

essence of judicial duty.

If, then, the courts are to regard the Constitution, and the Constitution is superior to any

ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the

case to which they both apply.

Those, then, who controvert the principle that the Constitution is to be considered, in court, as

a paramount law, are reduced to the necessity of maintaining that courts must close their eyes

on the Constitution, and see only the law.

This doctrine would subvert the very foundation of all written constitutions. It would declare

that an act which, according to the principles and theory of our government, is entirely void,

is yet, in practice, completely obligatory. It would declare that if the legislature shall do what

is expressly forbidden, such act, notwithstanding the express prohibition, is in reality

effectual. It would be giving to the legislature a practical and real omnipotence, with the same

breath which professes to restrict their powers within narrow limits. It is prescribing limits

and declaring that those limits may be passed at pleasure.

That it thus reduces to nothing what we have deemed the greatest improvement on political

institutions — a written constitution — would of itself be sufficient, in America, where

written constitutions have been viewed with so much reverence, for rejecting the

construction. But the peculiar expressions of the Constitution of the United States furnish

additional arguments in favor of its rejection.

The judicial power of the United States is extended to all cases arising under the Constitution.

Could it be the intention of those who gave this power to say that, in using it, the Constitution

should not be looked into? That a case arising under the Constitution should be decided

without examining the instrument under which it rises?

This is too extravagant to be maintained.

In some cases then, the Constitution must be looked into by the judges. And if they can open

it at all, what part of it are they forbidden to read or to obey?

There are many other parts of the Constitution which serve to illustrate this subject.

It is declared that “no tax or duty shall be laid on articles exported from any state.” Suppose a

duty on the export of cotton, of tobacco, or of flour; and a suit instituted to recover it. Ought

judgment to be rendered in such a case? Ought the judges to close their eyes on the

Constitution, and see only the law?

The Constitution declares that “no bill of attainder or ex post facto law shall be passed.”

If, however, such a bill should be passed and a person should be prosecuted under it; must the

court condemn to death those victims who the Constitution endeavours to preserve?

“No person,” says the Constitution, “shall be convicted of treason unless on the testimony of

two witnesses to the same overt act, or on confession in open court.”

Here the language of the Constitution is addressed especially to the courts. It prescribes,

directly for them, a rule of evidence not to be departed from. If the legislature should change

that rule, and declare one witness, or a confession out of court, sufficient for conviction, must

the constitutional principle yield to the legislative act?

From these, and many other selections which might be made, it is apparent that the framers of

the Constitution contemplated that instrument as a rule for the government of courts, as well

as of the legislature.

Why otherwise does it direct the judges to take an oath to support it? This oath certainly

applies in an especial manner to their conduct in their official character. How immoral to

impose it on them, if they were to be used as the instruments, and the knowing instruments,

for violating what they swear to support?

The oath of office, too, imposed by the legislature, is completely demonstrative of the

legislative opinion on this subject. It is in these words: “I do solemnly swear that I will

administer justice without respect to persons, and do equal right to the poor and to the rich;

and that I will faithfully and impartially discharge all the duties incumbent on me as —,

according to the best of my abilities and understanding agreeably to the Constitution and laws

of the United States.”

Why does a judge swear to discharge his duties agreeably to the Constitution of the United

States, if that Constitution forms no rule for his government? If it is closed upon him, and

cannot be inspected by him?

If such be the real state of things, this is worse than solemn mockery. To prescribe, or take

this oath, becomes equally a crime.

It is also not entirely unworthy of observation that, in declaring what shall be the supreme

law of the land, the Constitution itself is first mentioned; and not the laws of the United States

generally, but those only which shall he made in pursuance of the Constitution, have that

rank.

Thus, the particular phraseology of the Constitution of the United States confirms and

strengthens the principle, supposed to be essential to all written constitutions, that a law

repugnant to the Constitution is void; and that courts, as well as other departments, are bound

by that instrument.

The rule must be

Discharged.

Class 5 Reading – Original Intent and the Evolving Constitution.pdf

Supreme Court of the United States

BOY SCOUTS OF AMERICA V. DALE

530 U.S. 640 (2000)

Petitioners are the Boy Scouts of America and its Monmouth

Council (collectively, Boy Scouts). The Boy Scouts is a
private, not-for-profit organization engaged in instilling its
system of values in young people. It asserts that homosexual
conduct is inconsistent with those values. Respondent Dale
is an adult whose position as assistant scoutmaster of a New
Jersey troop was revoked when the Boy Scouts learned that
he is an avowed homosexual and gay rights activist. He filed
suit in the New Jersey Superior Court, alleging, inter alia,

that the Boy Scouts had violated the state statute

prohibiting discrimination on the basis of sexual orientation
in places of public accommodation. That court’s Chancery
Division granted summary judgment for the Boy Scouts, but
its Appellate Division reversed in pertinent part and
remanded. The State Supreme Court affirmed,
holding, inter alia, that the Boy Scouts violated the State’s

public accommodations law by revoking Dale’s membership

based on his avowed homosexuality. Among other rulings,

the court held that application of that law did not violate
the Boy Scouts’ First Amendment right of expressive
association because Dale’s inclusion would not significantly
affect members’ ability to carry out their purposes;
determined that New Jersey has a compelling interest in
eliminating the destructive consequences of discrimination
from society, and that its public accommodations law
abridges no more speech than is necessary to accomplish its
purpose; and distinguished Hurley v. Irish-American Gay,
Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, on
the ground that Dale’s reinstatement did not compel the
Boy Scouts to express any message.

Held: Applying New Jersey’s public accommodations law to
require the Boy Scouts to admit Dale violates the Boy
Scouts’ First Amendment right of expressive association.
Government actions that unconstitutionally burden that
right may take many forms, one of which is intrusion into a
group’s internal affairs by forcing it to accept a member it
does not desire. Roberts v. United States Jaycees, 468 U.S.

609, 623. Such forced membership is unconstitutional if the
person’s presence affects in a significant way the group’s

ability to advocate public or private viewpoints. New

York State Club Assn., Inc. v. City of New York, 487 U.S. 1,

13. However, the freedom of expressive association is not
absolute; it can be overridden by regulations adopted to

serve compelling state interests, unrelated to

the suppression of ideas, that cannot be achieved through

means significantly less restrictive of associational
freedoms. Roberts, 468 U.S., at 623. To determine whether
a group is protected, this Court must determine whether
the group engages in “expressive association.” The record
clearly reveals that the Boy Scouts does so when its adult
leaders inculcate its youth members with its value system.
See id., at 636. Thus, the Court must determine whether
the forced inclusion of Dale would significantly affect the
Boy Scouts’ ability to advocate public or private viewpoints.
The Court first must inquire, to a limited extent, into the
nature of the Boy Scouts’ viewpoints. The Boy Scouts asserts
that homosexual conduct is inconsistent with the values
embodied in the Scout Oath and Law, particularly those
represented by the terms “morally straight” and “clean,”
and that the organization does not want to promote
homosexual conduct as a legitimate form of behavior. The
Court gives deference to the Boy Scouts’ assertions
regarding the nature of its expression, see, Democratic
Party of United States v. Wisconsin ex rel. La Follette, 450
U.S. 107, 123—124. The Court then inquires whether Dale’s
presence as an assistant scoutmaster would significantly
burden the expression of those viewpoints. Dale, by his own
admission, is one of a group of gay Scouts who have become
community leaders and are open and honest about their
sexual orientation. His presence as an assistant scoutmaster
would interfere with the Scouts’ choice not to propound

a point of view contrary to its beliefs. See Hurley, 515 U.S.,

at 576—577. This Court disagrees with the New Jersey
Supreme Court’s determination that the Boy Scouts’ ability
to disseminate its message would not be significantly
affected by the forced inclusion of Dale. First, contrary to
the state court’s view, an association need not associate for
the purpose of disseminating a certain message in order to
be protected, but must merely engage in expressive activity
that could be impaired. Second, even if the Boy Scouts
discourages Scout leaders from disseminating views on
sexual issues, its method of expression is protected. Third,

the First Amendment does not require that every member of

a group agree on every issue in order for the group’s policy

to be “expressive association.” Given that the Boy Scouts’

expression would be burdened, the Court must inquire
whether the application of New Jersey’s public
accommodations law here runs afoul the Scouts’ freedom of
expressive association, and concludes that it does. Such a
law is within a State’s power to enact when the legislature
has reason to believe that a given group is the target of

discrimination and the law does not violate the First

Amendment. See, e.g., id., at 572. The Court rejects Dale’s
contention that the intermediate standard of review
enunciated in United States v. O’Brien, 391 U.S. 367, should
be applied here to evaluate the competing interests of the
Boy Scouts and the State. Rather, the Court applies an
analysis similar to the traditional First Amendment analysis
it applied in Hurley. A state requirement that the Boy
Scouts retain Dale would significantly burden the
organization’s right to oppose or disfavor homosexual
conduct. The state interests embodied in New Jersey’s
public accommodations law do not justify such a severe
intrusion on the freedom of expressive association. In so
ruling, the Court is not guided by its view of whether the
Boy Scouts’ teachings with respect to homosexual conduct
are right or wrong; public or judicial disapproval of an
organization’s expression does not justify the State’s effort
to compel the organization to accept members in
derogation of the organization’s expressive message.

While the law may promote all sorts of conduct in place of

harmful behavior, it may not interfere with speech for no
better reason than promoting an approved message or
discouraging a disfavored one, however enlightened either
purpose may seem. Hurley, supra, at 579. Pp. 5—17.

Class 10 – Burnham,_370-378.pdf

William Burnham, INTRODUCTION TO THE LAW AND LEGAL SYSTEM OF THE UNITED
STATES (1995)

pp. 10–13

1. Establishment and Vigorous Exercise of the Power of Judicial Review

As the discussion of the basic provisions of the 1789 Constitution indicates, the
Constitution’s “checks and balances” provide for some control by the executive and
legislative branches over the power of the judicial branch, primarily through selection of
judges and control of federal court jurisdiction. However, the constitutional text does not
clearly set out what checks the judicial branch was to have on legislative and executive
power. The power of judicial review—the power of the Supreme Court to pass on the
constitutionality of laws and actions of the other two branches—was found to be implicit in
the Constitution in the 1803 case of Marbury v. Madison.

The Basis for Judicial Review – The Court in Marbury, speaking through Chief
Justice John Marshall, found judicial review implicit in the nature of a written constitution, in
the supremacy clause and in Article III’s grant of judicial power. He reasoned as follows.
Frist, the Constitution is law and must be followed; indeed, the supremacy clause makes the
Constitution the supreme law of the land. Second, the judges of the judicial branch, being
vested by Article III with the “judicial Power of the United States,” have the power to say hat
the law is in cases that come before them. It follows then that, if a case pending before those
judges both legislation and the Constitution apply to an issue, the judges must follow the
hierarchy of aw set out in the supremacy clause: they must apply the constitutional provision
and disregard the statute. Marbury involved a federal statute, but the reasoning of Marbury
was applied to a state enactment in 1810 in Fletcher v. Peck.

Vigorous Exercise of Judicial Review in Modern Times – Many scholars would not
consider the establishment of judicial review to be a constitutional “development since
1789,” but an integral if unspoken part of the original Constitution. However, the frequency
of the exercise of judicial review clearly is. Judicial review was used sparingly in the first
century of the country’s history. Today, it is a major force in law and government that
profoundly affects the balance of federalism, separation of powers, and the relationship
between individuals and all levels of government. The greatest surge in judicial review has
been since 1953, when Earl Warren became Chief Justice of the United States.

In the 75 years from 1789 until 1864, the Court held only two Acts of Congress
unconstitutional. From 1789 to 1953, a period of 164 years, the total climbs to only 76
invalidations. But during 1953 to 1991, a period of only 38 years, it held 66 Acts of Congress
unconstitutional, or almost two per year. Interestingly enough, though the surge in cases
began with the “liberal” Warren Court, the more “conservative” Burger Court was no less
“activist.” …

Class 3 Reading – Outline of US Gov – the Judicial Branch.pdf

National Federation of Independent Business v. Sebelius

567 U.S. ___ (2012)

In 2010, Congress enacted the Patient Protection and Affordable Care Act in order to
increase the number of Americans covered by health insurance and decrease the cost of
health care. One key provision is the individual mandate, which requires most Americans to
maintain “minimum essential” health insurance coverage. 26 U. S. C. §5000A. For individuals
who are not exempt, and who do not receive health insurance through an employer or
government program, the means of satisfying the requirement is to purchase insurance
from a private company. Beginning in 2014, those who do not comply with the mandate
must make a “[s]hared responsibility payment” to the Federal Government. §5000A(b)(1).
The Act provides that this “penalty” will be paid to the Internal Revenue Service with an
individual’s taxes, and “shall be assessed and collected in the same manner” as tax
penalties. §§5000A(c), (g)(1).

Another key provision of the Act is the Medicaid expansion. The current Medicaid program
offers federal funding to States to assist pregnant women, children, needy families, the
blind, the elderly, and the disabled in obtaining medical care. 42 U. S. C. §1396d(a). The
Affordable Care Act expands the scope of the Medicaid program and increases the number
of individuals the States must cover. For example, the Act requires state programs to
provide Medicaid coverage by 2014 to adults with incomes up to 133 percent of the federal
poverty level, whereas many States now cover adults with children only if their income is
considerably lower, and do not cover childless adults at all. §1396a(a)(10)(A)(i)(VIII). The Act
increases federal funding to cover the States’ costs in expanding Medicaid coverage.
§1396d(y)(1). But if a State does not comply with the Act’s new coverage requirements, it
may lose not only the federal funding for those requirements, but all of its federal Medicaid
funds. §1396c.

Twenty-six States, several individuals, and the National Federation of Independent Business
brought suit in Federal District Court, challenging the constitutionality of the individual
mandate and the Medicaid expansion. The Court of Appeals for the Eleventh Circuit upheld
the Medicaid expansion as a valid exercise of Congress’s spending power, but concluded
that Congress lacked authority to enact the individual mandate. Finding the mandate
severable from the Act’s other provisions, the Eleventh Circuit left the rest of the Act intact.

Held: The judgment is affirmed in part and reversed in part.

[…]

Chief Justice Roberts announced the judgment of the Court and delivered the opinion of the
Court with respect to Parts I, II, and III–C, an opinion with respect to Part IV, in which Justice
Breyer and Justice Kagan join, and an opinion with respect to Parts III–A, III–B, and III–D.

Today we resolve constitutional challenges to two provisions of the Patient Protection and
Affordable Care Act of 2010: the individual mandate, which requires individuals to purchase
a health insurance policy providing a minimum level of coverage; and the Medicaid
expansion, which gives funds to the States on the condition that they provide specified
health care to all citizens whose income falls below a certain threshold. We do not consider
whether the Act embodies sound policies. That judgment is entrusted to the Nation’s
elected leaders. We ask only whether Congress has the power under the Constitution to
enact the challenged provisions.

In our federal system, the National Government possesses only limited powers; the States
and the people retain the remainder. Nearly two centuries ago, Chief Justice Marshall
observed that “the question respecting the extent of the powers actually granted” to the
Federal Government “is perpetually arising, and will probably continue to arise, as long as
our system shall exist.” McCulloch v. Maryland, 4 Wheat. 316, 405 (1819). In this case we
must again determine whether the Constitution grants Congress powers it now asserts, but
which many States and individuals believe it does not possess. Resolving this controversy
requires us to examine both the limits of the Government’s power, and our own limited role
in policing those boundaries.

The Federal Government “is acknowledged by all to be one of enumerated powers.” Ibid.
That is, rather than granting general authority to perform all the conceivable functions of
government, the Constitution lists, or enumerates, the Federal Government’s powers.
Congress may, for example, “coin Money,” “establish Post Offices,” and “raise and support
Armies.” Art. I, §8, cls. 5, 7, 12. The enumeration of powers is also a limitation of powers,
because “[t]he enumeration presupposes something not enumerated.” Gibbons v. Ogden, 9
Wheat. 1, 195 (1824). The Constitution’s express conferral of some powers makes clear that
it does not grant others. And the Federal Government “can exercise only the powers
granted to it.” McCulloch, supra, at 405.

Today, the restrictions on government power foremost in many Americans’ minds are likely
to be affirmative prohibitions, such as contained in the Bill of Rights. These affirmative
prohibitions come into play, however, only where the Government possesses authority to
act in the first place. If no enumerated power authorizes Congress to pass a certain law, that
law may not be enacted, even if it would not violate any of the express prohibitions in the
Bill of Rights or elsewhere in the Constitution.

…

The same does not apply to the States, because the Constitution is not the source of their
power. The Constitution may restrict state governments—as it does, for example, by
forbidding them to deny any person the equal protection of the laws. But where such
prohibitions do not apply, state governments do not need constitutional authorization to
act. The States thus can and do perform many of the vital functions of modern
government—punishing street crime, running public schools, and zoning property for
development, to name but a few—even though the Constitution’s text does not authorize
any government to do so. Our cases refer to this general power of governing, possessed by
the States but not by the Federal Government, as the “police power.”

“State sovereignty is not just an end in itself: Rather, federalism secures to citizens the
liberties that derive from the diffusion of sovereign power.” New York v. United States, 505
U. S. 144, 181 (1992) (internal quotation marks omitted). Because the police power is
controlled by 50 different States instead of one national sovereign, the facets of governing
that touch on citizens’ daily lives are normally administered by smaller governments closer
to the governed. The Framers thus ensured that powers which “in the ordinary course of
affairs, concern the lives, liberties, and properties of the people” were held by governments
more local and more accountable than a distant federal bureaucracy. The Federalist No. 45,
at 293(J. Madison). The independent power of the States also serves as a check on the
power of the Federal Government: “By denying any one government complete jurisdiction
over all the concerns of public life, federalism protects the liberty of the individual from
arbitrary power.” Bond v. United States, 564 U. S. ___, ___ (2011) (slip op., at 9–10).

This case concerns two powers that the Constitution does grant the Federal Government,
but which must be read carefully to avoid creating a general federal authority akin to the
police power. The Constitution authorizes Congress to “regulate Commerce with foreign
Nations, and among the several States, and with the Indian Tribes.” Art. I, §8, cl. 3. Our
precedents read that to mean that Congress may regulate “the channels of interstate
commerce,” “persons or things in interstate commerce,” and “those activities that
substantially affect interstate commerce.” Morrison, supra, at 609 (internal quotation marks
omitted). The power over activities that substantially affect interstate commerce can be
expansive. That power has been held to authorize federal regulation of such seemingly local
matters as a farmer’s decision to grow wheat for himself and his livestock, and a loan
shark’s extortionate collections from a neighborhood butcher shop. See Wickard v. Filburn,
317 U. S. 111 (1942); Perez v. United States, 402 U. S. 146 (1971) .

Congress may also “lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and
provide for the common Defence and general Welfare of the United States.” U. S. Const.,
Art. I, §8, cl. 1. Put simply, Congress may tax and spend. This grant gives the Federal
Government considerable influence even in areas where it cannot directly regulate. The
Federal Government may enact a tax on an activity that it cannot authorize, forbid, or
otherwise control. See, e.g., License Tax Cases, 5 Wall. 462, 471 (1867). And in exercising its
spending power, Congress may offer funds to the States, and may condition those offers on
compliance with specified conditions. See, e.g., College Savings Bank v. Florida Prepaid
Postsecondary Ed. Expense Bd., 527 U. S. 666, 686 (1999) . These offers may well induce the
States to adopt policies that the Federal Government itself could not impose. See, e.g.,
South Dakota v. Dole, 483 U. S. 203–206 (1987) (conditioning federal highway funds on
States raising their drinking age to 21).

The reach of the Federal Government’s enumerated powers is broader still because the
Constitution authorizes Congress to “make all Laws which shall be necessary and proper for
carrying into Execution the foregoing Powers.” Art. I, §8, cl. 18. We have long read this
provision to give Congress great latitude in exercising its powers: “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.” McCulloch, 4 Wheat., at 421.

Our permissive reading of these powers is explained in part by a general reticence to
invalidate the acts of the Nation’s elected leaders. “Proper respect for a co-ordinate branch
of the government” requires that we strike down an Act of Congress only if “the lack of
constitutional authority to pass [the] act in question is clearly demonstrated.” United States
v. Harris, 106 U. S. 629, 635 (1883). Members of this Court are vested with the authority to
interpret the law; we possess neither the expertise nor the prerogative to make policy
judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be
thrown out of office if the people disagree with them. It is not our job to protect the people
from the consequences of their political choices.

Our deference in matters of policy cannot, however, become abdication in matters of law.
“The powers of the legislature are defined and limited; and that those limits may not be
mistaken, or forgotten, the constitution is written.” Marbury v. Madison, 1 Cranch 137, 176
(1803). …

The questions before us must be considered against the background of these basic
principles.

I. (FACTS)

In 2010, Congress enacted the Patient Protection and Affordable Care Act, 124Stat. 119.

The Act aims to increase the number of Americans covered by health insurance and

decrease the cost of health care. The Act’s 10 titles stretch over 900 pages and contain

hundreds of provisions. This case concerns constitutional challenges to two key

provisions, commonly referred to as the individual mandate and the Medicaid

expansion.

The individual mandate requires most Americans to maintain “minimum essential”

health insurance coverage. 26 U. S. C. §5000A. The mandate does not apply to some

individuals, such as prisoners and undocumented aliens. §5000A(d). Many individuals

will receive the required coverage through their employer, or from a government

program such as Medicaid or Medicare. See §5000A(f). But for individuals who are not

exempt and do not receive health insurance through a third party, the means of

satisfying the requirement is to purchase insurance from a private company.

Beginning in 2014, those who do not comply with the mandate must make a “[s]hared

responsibility payment” to the Federal Government. §5000A(b)(1). That payment, which

the Act describes as a “penalty,” is calculated as a percentage of household income,

subject to a floor based on a specified dollar amount and a ceiling based on the average

annual premium the individual would have to pay for qualifying private health

insurance. §5000A(c). In 2016, for example, the penalty will be 2.5 percent of an

individual’s household income, but no less than $695 and no more than the average

yearly premium for insurance that covers 60 percent of the cost of 10 specified services

(e.g., prescription drugs and hospitalization). Ibid.; 42 U. S. C. §18022. The Act

provides that the penalty will be paid to the Internal Revenue Service with an

individual’s taxes, and “shall be assessed and collected in the same manner” as tax

penalties, such as the penalty for claiming too large an income tax refund. 26 U. S. C.

§5000A(g)(1). The Act, however, bars the IRS from using several of its normal

enforcement tools, such as criminal prosecutions and levies. §5000A(g)(2). And some

individuals who are subject to the mandate are nonetheless exempt from the penalty—

for example, those with income below a certain threshold and members of Indian tribes.

§5000A(e).

On the day the President signed the Act into law, Florida and 12 other States filed a

complaint in the Federal District Court for the Northern District of Florida. Those

plaintiffs—who are both respondents and petitioners here, depending on the issue—

were subsequently joined by 13 more States, several individuals, and the National Fed-

eration of Independent Business. The plaintiffs alleged, among other things, that the

individual mandate provisions of the Act exceeded Congress’s powers under Article I of

the Constitution. The District Court agreed, holding that Congress lacked constitutional

power to enact the individual mandate. 780 F. Supp. 2d 1256 (ND Fla. 2011). The

District Court determined that the individual mandate could not be severed from the

remainder of the Act, and therefore struck down the Act in its entirety. Id., at 1305–

1306.

…

III.

The Government advances two theories for the proposition that Congress had

constitutional authority to enact the individual mandate. First, the Government argues

that Congress had the power to enact the mandate under the Commerce Clause. Under

that theory, Congress may order individuals to buy health insurance because the failure

to do so affects interstate commerce, and could undercut the Affordable Care Act’s

other reforms. Second, the Government argues that if the commerce power does not

support the mandate, we should nonetheless uphold it as an exercise of Congress’s

power to tax. According to the Government, even if Congress lacks the power to direct

individuals to buy insurance, the only effect of the individual mandate is to raise taxes

on those who do not do so, and thus the law may be upheld as a tax.

A

The Government’s first argument is that the individual mandate is a valid exercise of

Congress’s power under the Commerce Clause and the Necessary and Proper Clause.

According to the Government, the health care market is characterized by a significant

cost-shifting problem. Everyone will eventually need health care at a time and to an

extent they cannot predict, but if they do not have insurance, they often will not be able

to pay for it. Because state and federal laws nonetheless require hospitals to provide a

certain degree of care to individuals without regard to their ability to pay, see, e.g., 42

U. S. C. §1395dd; Fla. Stat. Ann. §395.1041, hospitals end up receiving compensation

for only a portion of the services they provide. To recoup the losses, hospitals pass on

the cost to insurers through higher rates, and insurers, in turn, pass on the cost to

policy holders in the form of higher premiums. Congress estimated that the cost of

uncompensated care raises family health insurance premiums, on average, by over

$1,000 per year. 42 U. S. C. §18091(2)(F).

In the Affordable Care Act, Congress addressed the problem of those who cannot obtain

insurance coverage because of preexisting conditions or other health issues. It did so

through the Act’s “guaranteed-issue” and “community-rating” provisions. These

provisions together prohibit insurance companies from denying coverage to those with

such conditions or charging unhealthy individuals higher premiums than healthy

individuals.

…

1.

The Government contends that the individual mandate is within Congress’s power

because the failure to purchase insurance “has a substantial and deleterious effect on

interstate commerce” by creating the cost-shifting problem. Brief for United States 34.

The path of our Commerce Clause decisions has not always run smooth, see United

States v. Lopez, 514 U. S. 549–559 (1995), but it is now well established that Congress

has broad authority under the Clause. We have recognized, for example, that “[t]he

power of Congress over interstate commerce is not confined to the regulation of

commerce among the states,” but extends to activities that “have a substantial effect on

interstate commerce.” United States v. Darby, 312 U. S. 100–119 (1941). Congress’s

power, more-over, is not limited to regulation of an activity that by itself substantially

affects interstate commerce, but also extends to activities that do so only when

aggregated with similar activities of others. See Wickard, 317 U. S., at 127–128.

Given its expansive scope, it is no surprise that Congress has employed the commerce

power in a wide variety of ways to address the pressing needs of the time. But Congress

has never attempted to rely on that power to compel individuals not engaged in

commerce to purchase an unwanted product…

As expansive as our cases construing the scope of the commerce power have been, they all
have one thing in common: They uniformly describe the power as reaching “activity.” It is
nearly impossible to avoid the word when quoting them…

The individual mandate, however, does not regulate existing commercial activity. It

instead compels individuals to become active in commerce by purchasing a product, on

the ground that their failure to do so affects interstate commerce. Construing the

Commerce Clause to permit Congress to regulate individuals precisely because they are

doing nothing would open a new and potentially vast do-main to congressional

authority. Every day individuals do not do an infinite number of things. In some cases

they decide not to do something; in others they simply fail to do it. Allowing Congress

to justify federal regulation by pointing to the effect of inaction on commerce would

bring countless decisions an individual could potentially make within the scope of

federal regulation, and—under the Government’s theory—empower Congress to make

those decisions for him.

Applying the Government’s logic to the familiar case of Wickard v. Filburn shows how

far that logic would carry us from the notion of a government of limited powers.

In Wickard, the Court famously upheld a federal penalty im-posed on a farmer for

growing wheat for consumptionon his own farm. 317 U. S., at 114–115, 128–129. That

amount of wheat caused the farmer to exceed his quota under a program designed to

support the price of wheat by limiting supply. The Court rejected the farmer’s argument

that growing wheat for home consumption was beyond the reach of the commerce

power. It did so on the ground that the farmer’s decision to grow wheat for his own use

allowed him to avoid purchasing wheat in the market. That decision, when considered

in the aggregate along with similar decisions of others, would have had a substantial

effect on the interstate market for wheat. Id., at 127–129.

Wickard has long been regarded as “perhaps the most far reaching example of

Commerce Clause authority over intrastate activity,” Lopez, 514 U. S., at 560, but the

Government’s theory in this case would go much further. Under Wickard it is within

Congress’s power to regulate the market for wheat by supporting its price. But price can

be supported by increasing demand as well as by decreasing supply. The aggregated

decisions of some consumers not to purchase wheat have a substantial effect on the

price of wheat, just as decisions not to purchase health insurance have on the price of

insurance. Congress can therefore command that those not buying wheat do so, just as

it argues here that it may command that those not buying health insurance do so. The

farmer in Wickard was at least actively engaged in the production of wheat, and the

Government could regulate that activity because of its effect on commerce. The

Government’s theory here would effectively override that limitation, by establishing that

individuals may be regulated under the Commerce Clause whenever enough of them are

not doing something the Government would have them do.

…

The Government sees things differently. It argues that because sickness and injury are

unpredictable but unavoidable, “the uninsured as a class are active in the market for

health care, which they regularly seek and obtain.” Brief for United States 50. The

individual mandate “merely regulates how individuals finance and pay for that active

participation—requiring that they do so through insurance, rather than through

attempted self-insurance with the back-stop of shifting costs to others.” Ibid.

The Government repeats the phrase “active in the market for health care” throughout its

brief, see id., at 7, 18, 34, 50, but that concept has no constitutional significance. An

individual who bought a car two years ago and may buy another in the future is not

“active in the car market” in any pertinent sense. The phrase “active in the market”

cannot obscure the fact that most of those regulated by the individual mandate are not

currently engaged in any commercial activity involving health care, and that fact is fatal

to the Government’s effort to “regulate the uninsured as a class.”

…

Everyone will likely participate in the markets for food, clothing, transportation, shelter,

or energy; that does not authorize Congress to direct them to purchase particular

products in those or other markets today. The Commerce Clause is not a general license

to regulate an individual from cradle to grave, simply because he will predictably

engage in particular transactions. Any police power to regulate individuals as such, as

opposed to their activities, remains vested in the States.

The Government argues that the individual mandate can be sustained as a sort of

exception to this rule, because health insurance is a unique product. According to the

Government, upholding the individual mandate would not justify mandatory purchases

of items such as cars or broccoli because, as the Government puts it, “[h]ealth insurance

is not purchased for its own sake like a car or broccoli; it is a means of financing

health-care consumption and covering universal risks.” Reply Brief for United States 19.

But cars and broccoli are no more purchased for their “own sake” than health insurance.

They are purchased to cover the need for transportation and food.

The Government says that health insurance and health care financing are “inherently

integrated.” Brief for United States 41. But that does not mean the compelled purchase

of the first is properly regarded as a regulation of the second. No matter how

“inherently integrated” health insurance and health care consumption may be, they are

not the same thing: They involve different transactions, entered into at different times,

with different providers. And for most of those targeted by the mandate, significant

health care needs will be years, or even decades, away. The proximity and degree of

connection between the mandate and the subsequent commercial activity is too lacking

to justify an exception of the sort urged by the Government. The individual mandate

forces individuals into commerce precisely because they elected to refrain from

commercial activity. Such a law cannot be sustained under a clause authorizing

Congress to “regulate Commerce.”

…

B.

That is not the end of the matter. Because the Commerce Clause does not support the

individual mandate, it is necessary to turn to the Government’s second argument: that

the mandate may be upheld as within Congress’s enumerated power to “lay and collect

Taxes.” Art. I, §8, cl. 1.

The Government’s tax power argument asks us to view the statute differently than we

did in considering its commerce power theory. In making its Commerce Clause

argument, the Government defended the mandate as a regulation requiring individuals

to purchase health in-surance. The Government does not claim that the taxing power

allows Congress to issue such a command. Instead, the Government asks us to read the

mandate not as ordering individuals to buy insurance, but rather as imposing a tax on

those who do not buy that product.

The most straightforward reading of the mandate is that it commands individuals to

purchase insurance. After all, it states that individuals “shall” maintain health

insurance. 26 U. S. C. §5000A(a). Congress thought it could enact such a command

under the Commerce Clause, and the Government primarily defended the law on that

basis. But, for the reasons explained above, the Commerce Clause does not give

Congress that power. Under our precedent, it is therefore necessary to ask whether the

Government’s alternative reading of the statute—that it only imposes a tax on those

without insurance—is a reasonable one.

Under the mandate, if an individual does not maintain health insurance, the only

consequence is that he must make an additional payment to the IRS when he pays his

taxes. See §5000A(b). That, according to the Government, means the mandate can be

regarded as establishing a condition—not owning health insurance—that triggers a

tax—the required payment to the IRS. Under that theory, the mandate is not a legal

command to buy insurance. Rather, it makes going without insurance just another thing

the Government taxes, like buying gasoline or earning income. And if the mandate is in

effect just a tax hike on certain taxpayers who do not have health insurance, it may be

within Congress’s constitutional power to tax.

The question is not whether that is the most natural interpretation of the mandate, but

only whether it is a “fairly possible” one. Crowell v. Benson, 285 U. S. 22, 62 (1932) . As

we have explained, “every reasonable construction must be resorted to, in order to save

a statute from unconstitutionality.” Hooper v. California, 155 U. S. 648, 657 (1895) .

The Government asks us to interpret the mandate as imposing a tax, if it would

otherwise violate the Constitution. Granting the Act the full measure of deference owed

to federal statutes, it can be so read, for the reasons set forth below.

Introduction to U.S. Law

Class 14 | 2 Feb. 2022
Cristina Lloyd, J.D., LL.M.

[email protected]

Exam• Exam Dates:
• February 24, 2022 (15:00-17:00)
• March 21, 2022 (15:00-17:00)

• Probable Exam Structure:
• ~80% short answer (20 questions)
• ~20% small essay

• What to know:
• Key terms and definitions
• Major cases (precedent and general facts)
• “Tests”
• Come to the review session

• I cannot stress this enough: if you have questions regarding exam registration or the
exam schedule, you MUST contact the exam office!
• Website: https://pruefungsamt.jura.uni-halle.de/pruefungen/modulpruefungen/
• Email: [email protected]

Moot Court!

• Early Death Penalty Laws
• Early Codes (BC)

• Capital Punishment in Britain

• Death Penalty in the USA
• Ex: Massachusetts

• Early Abolition Movement

Death Penalty – History

Death Penalty – Constitutionality

• 1960s – “Cruel and Unusual Punishment”
• U.S. v. Jackson (1968) – death penalty cannot only be imposed by a jury because

encouraging defendants to waive their right to a jury trial is unconstitutional
• Witherspoon v. Illinois (1968) – a jury composed after dismissal of all who oppose the

death sentence is biased in favor of the death sentence

• 1972 – Death Penalty Suspended
• Furman v. Georgia (1972) – the death penalty cannot be imposed on cases where it

would be too severe a punishment for the crime committed  states all had to re-
evaluate their death penalty statutes

• 1976 – Death Penalty Reinstated
• Gregg v. Georgia (1976) – a trial of capital crimes that is split into two phases (guilt –

innocence phase and sentencing phase) was constitutional

Death Penalty – Limitations and Issues

• Limitations within the United States
• Mental Illness/Intellectual Disability

• Juveniles

• Death Penalty Issues in the US
• Race

• Innocence

• Public Support

• Religion

• Women

Death Penalty – Recent Issues

• Lethal Injection

• Wrongful Execution

2nd Amendment – Right to Bear Arms

• “A well regulated Militia, being necessary to the security of a free State,
the right of the people to keep and bear Arms, shall not be infringed.“

• What exactly did the Founders intend to protect with the language of the 2nd

Amendment?

• What rights, and whose rights, does the 2nd Amendment guarantee?
• What limits and/or regulations are appropriate under the 2nd Amendment?

What exactly did the Founders intend to protect with the
language of the 2nd Amendment?

• Common Law Influence
• The English Bill of Rights 1689

• Experience in Early America
• Why did Colonists feel the right to bear arms

was important?

• Militias

What rights, and whose rights, does the 2nd

Amendment guarantee?
• Collective Rights Theory: the language ”a well regulated

Militia” shows that the Framers intended only to
restrict Congress from legislating away a state’s right
to defense
• US v. Miller (1939): adopted a Collective Rights view

• Individual Right Theory: the language “the right of the
people to keep and bear Arms” creates an individual
constitutional right to possess firearms
• DC v. Heller (2008): adopted Individual Rights Theory in

approaching 2nd Amendment cases

The National Rifle Association (NRA)

• NRA: a gun rights advocacy group, founded in 1871 to advance
marksmanship, and is now one of the most influential advocacy groups
in US politics
• Roughly 5 million members

• One of the strongest lobbying groups in the US

Open Carry
• Open Carry: the practice of visibly

carrying a firearm in public places
• Permissive Open Carry: open carry allowed

for all non-prohibited citizens, no license or
permit required

• Licensed Open Carry: permit open carry of a
handgun for all non-prohibited citizens
once they have been issued a permit or
license

• Anomalous Open Carry: open carry
generally prohibited expect under special
circumstances, or where local authorities
have allowed open carry with a permit

• Non-permissive Open Carry: open carry of a
handgun is not lawful

Open Carry & Concealed Carry

• Concealed Carry: the practice of carrying
firearms in a way that cannot be seen by
the casual observer
• Constitutional Carry: permit is not required to

carry a concealed handgun
• Shall-issue: license required to carry a

concealed handgun, granting of such license
set by law

• May-issue: license required to carry a
concealed handgun, granting of such license is
set by law, but up to the discretion of local
authorities

• No-issue: no private citizen allowed to carry a
concealed handgun in public (with veryyyy
limited exceptions)

Mass Shootings

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