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Dwight Allen
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Judicial interpretation is the way in which the judiciary construes the law, particularly constitutional documents, legislation and frequently used vocabulary. This is an important issue in some common law jurisdictions such as the United States, Australia and Canada, because the supreme courts of those nations can overturn laws made by their legislatures via a process called judicial review.
For example, the United States Supreme Court has decided such topics as the legality of slavery as in the Dred Scott decision, and desegregation as in the Brown v Board of Education decision, and abortion rights as in the Roe v Wade decision. As a result, how justices interpret the constitution, and the ways in which they approach this task has a political aspect. Terms describing types of judicial interpretation can be ambiguous; for example, the term judicial conservatism can vary in meaning depending on what is trying to be "conserved". One can look at judicial interpretation along a continuum from judicial restraint to judicial activism, with different viewpoints along the continuum.
Phrases which are regularly used, for example in standard contract documents, may attract judicial interpretation applicable within a particular jurisdiction whenever the same words are used in the same context.
In the United States, there are different methods to perform judicial interpretation:
Balancing happens when judges weigh one set of interests or rights against an opposing set, typically used to make rulings in First Amendment cases. For example, cases involving freedom of speech sometimes require justices to make a distinction between legally permissible speech and speech that can be restricted or banned for, say, reasons of safety, and the task then is for justices to balance these conflicting claims. The balancing approach was criticized by Supreme Court justice Felix Frankfurter who argued that the Constitution gives no guidance about how to weigh or measure divergent interests.
Doctrinalism considers how various parts of the Constitution have been "shaped by the Court's own jurisprudence", according to Finn.
In American constitutional law, a statute is void for vagueness and unenforceable if it is too vague for the average citizen to understand, and a constitutionally-protected interest cannot tolerate permissible activity to be chilled within the range of the vagueness (either because the statute is a penal statute with criminal or quasi-criminal civil penalties, or because the interest invaded by the vague law is a strict scrutiny constitutional right). There are several reasons a statute may be considered vague; in general, a statute might be void for vagueness when an average citizen cannot generally determine what persons are regulated, what conduct is prohibited, or what punishment may be imposed. For example, criminal laws which do not state explicitly and definitely what conduct is punishable are void for vagueness. A statute is also void for vagueness if a legislature's delegation of authority to judges and/or administrators is so extensive that it would lead to arbitrary prosecutions. Related to the "void for vagueness" concept is the "unconstitutional vagueness" concept. A law can be "void for vagueness" if it imposes on First Amendment freedom of speech, assembly, or religion.
The "void for vagueness" doctrine applies only to criminal or penal laws (or quasi-criminal laws, for example laws that carry civil penalties), and laws that potentially limit "strict scrutiny" constitutional rights. The doctrine does not apply to private law (that is, laws that govern rights and obligations as between private parties), only to laws that govern rights and obligations vis-a-vis the government. The doctrine also requires that to qualify as constitutional, a law must:
State explicitly what it mandates, and what is enforceable.
Define potentially vague terms.
Roots and purpose.
In the case of vagueness, a statute might be considered void on constitutional grounds. Specifically, roots of the vagueness doctrine extend into the two due process clauses, in the Fifth and Fourteenth Amendments to the United States Constitution. The courts have generally determined that vague laws deprive citizens of their rights without fair process, thus violating due process.
The following pronouncement of the void for vagueness doctrine was made by Justice Sutherland in Connally v General Construction Company (1926):
he terms of a penal statute must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties… and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.
The void for vagueness doctrine is a constitutional rule. This rule requires that laws are so written that they explicitly and definitely state what conduct is punishable. The vagueness doctrine thus serves two purposes. First: All persons receive a fair notice of what is punishable and what is not. Second: The vagueness doctrine helps prevent arbitrary enforcement of the laws and arbitrary prosecutions. There is however no limit to the conduct that can be criminalized, when the legislature does not set minimum guidelines to govern law enforcement.
Overseas and nonresident citizens.
U.S. citizens residing overseas who would otherwise have the right to vote are guaranteed the right to vote in federal elections by the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) of 1986. As a practical matter, individual states implement UOCAVA.
A citizen who has never resided in the United States can vote if a parent is eligible to vote in certain states. In some of these states the citizen can vote in local, state, and federal elections, in others in federal elections only.
Voting rights of U.S. citizens who have never established residence in the U.S. vary by state and may be impacted by the residence history of their parents.
U.S. territories.
U.S. citizens and non-citizen nationals who reside in American Samoa, Guam, Northern Mariana Islands, Puerto Rico, or the United States Virgin Islands are not allowed to vote in U.S. national and presidential elections, as these U.S. territories belong to the United States but do not have presidential electors. The U.S. Constitution requires a voter to be resident in one of the 50 states or in the District of Columbia to vote in federal elections. To say that the Constitution does not require extension of federal voting rights to U.S. territories residents does not, however, exclude the possibility that the Constitution may permit their enfranchisement under another source of law. Statehood or a constitutional amendment would allow people in the U.S. territories to vote in federal elections.
Like the District of Columbia, territories of the United States do not have U.S. senators representing them in the senate, and they each have one member of the House of Representatives who is not allowed to vote.
These voting restrictions have been challenged in a series of lawsuits in the 21st century. In 2015, residents of Guam, Puerto Rico, and the Virgin Islands joined as plaintiffs in Segovia v Board of Election Commissioners (2016). The participants had all formerly lived in Illinois, but because of a change of residency to an unincorporated territory were no longer able to vote. Their claim was that the Uniformed and Overseas Citizens Absentee Voting Act, as it is implemented, violates the Equal Protection Clause. At issue was that Illinois, the former residence of all of the plaintiffs, allowed residents of the Northern Mariana Islands who had formerly lived in Illinois to vote as absentee voters, but denied former residents living in other unincorporated territories the same right. The US District Court for the Northern District of Illinois ruled in 2016 that under the Absentee Voting Act, former residents of US states are entitled to vote in elections of the last jurisdiction in which they qualified to vote, as long as they reside in a foreign location. Using rational basis review, the court stated that the Northern Mariana Islands had a unique relationship with the United States and could be treated differently. It further pointed out that as the law does not differentiate between residents within a territory, as to who formerly resided in a state, but all are treated equally, no violation occurred. The United States Court of Appeals for the Seventh Circuit concurred with the decision, but dismissed the case for lack of standing because the application of the Absentee Voting Act in Illinois is a state issue.
Young adults.
A third voting rights movement was won in the 1960’s to lower the voting age from twenty-one to eighteen. Activists noted that most of the young men who were being drafted to fight in the Vietnam War were too young to have any voice in the selection of the leaders who were sending them to fight. Some states had already lowered the voting age: notably Georgia, Kentucky, and Hawaii, had already permitted voting by persons younger than twenty-one.
The Twenty-sixth Amendment, ratified in 1971, prohibits federal and state laws which set a minimum voting age higher than 18 years. As of 2008, no state has opted for an earlier age, although some state governments have discussed it. California has, since the 1980s, allowed persons who are 17 to register to vote for an election where the election itself will occur on or after their 18th birthday, and several states including Indiana allow 17-year-olds to vote in a primary election provided they will be 18 by the general election.
Prisoners.
Prisoner voting rights are defined by individual states, and the laws are different from state to state. Some states allow only individuals on probation to vote. Others allow individuals on parole and probation. As of 2012, only Florida, Kentucky and Virginia continue to impose a lifelong denial of the right to vote to all citizens with a felony record, absent a restoration of rights granted by the Governor or state legislature. However, in Kentucky, a felon's rights can be restored after the completion of a restoration process to regain civil rights.
In 2007, Florida legislature restored voting rights to convicted felons who had served their sentences. In March 2011, however, Governor Rick Scott reversed the 2007 reforms. He signed legislation that permanently disenfranchises citizens with past felony convictions. After a referendum in 2018, however, Florida residents voted to restore voting rights to roughly 1.4 million felons who have completed their sentences.
In July 2005, Iowa Governor Tom Vilsack issued an executive order restoring the right to vote for all persons who have completed supervision. On October 31, 2005, Iowa's Supreme Court upheld mass re enfranchisement of convicted felons. Nine other states disenfranchise felons for various lengths of time following the completion of their probation or parole.
Other than Maine and Vermont, all U.S. states prohibit felons from voting while they are in prison. In Puerto Rico, felons in prison are allowed to vote in elections.
Practices in the United States are in contrast to some European nations that allow prisoners to vote, while other European countries have restrictions on voting while serving a prison sentence, but not after release. Prisoners have been allowed to vote in Canada since 2002.
The United States has a higher proportion of its population in prison than any other Western nation, and more than Russia or China. The dramatic rise in the rate of incarceration in the United States, a 500% increase from the 1970s to the 1990s, has vastly increased the number of people disenfranchised because of the felon provisions.
According to the Sentencing Project, as of 2010 an estimated 5.9 million Americans are denied the right to vote because of a felony conviction, a number equivalent to 2.5% of the U.S. voting-age population and a sharp increase from the 1.2 million people affected by felony disenfranchisement in 1976. Given the prison populations, the effects have been most disadvantageous for minority and poor communities.
Legal challenges to disfranchisement.
Although African Americans quickly began legal challenges to such provisions in the 19th century, it was years before any were successful before the U.S. Supreme Court. Booker T Washington, better known for his public stance of trying to work within societal constraints of the period at Tuskegee University, secretly helped fund and arrange representation for numerous legal challenges to disfranchisement. He called upon wealthy Northern allies and philanthropists to raise funds for the cause. The Supreme Court's upholding of Mississippi's new constitution, in Williams v Mississippi (1898), encouraged other states to follow the Mississippi plan of disenfranchisement. African Americans brought other legal challenges, as in Giles v Harris (1903) and Giles v Teasley (1904), but the Supreme Court upheld Alabama constitutional provisions. In 1915, Oklahoma was the last state to append a grandfather clause to its literacy requirement due to Supreme Court cases.
From early in the 20th century, the newly established National Association for the Advancement of Colored People (NAACP) took the lead in organizing or supporting legal challenges to segregation and disfranchisement. Gradually they planned the strategy of which cases to take forward. In Guinn v United States (1915), the first case in which the NAACP filed a brief, the Supreme Court struck down the grandfather clause in Oklahoma and Maryland. Other states in which it was used had to retract their legislation as well. The challenge was successful.
But, nearly as rapidly as the Supreme Court determined a specific provision was unconstitutional, state legislatures developed new statutes to continue disenfranchisement. For instance, in Smith v Allwright (1944), the Supreme Court struck down the use of state-sanctioned all-white primaries by the Democratic Party in the South. States developed new restrictions on black voting; Alabama passed a law giving county registrars more authority as to which questions they asked applicants in comprehension or literacy tests. The NAACP continued with steady progress in legal challenges to disenfranchisement and segregation.
In 1957, Congress passed the Civil Rights Act of 1957 to implement the Fifteenth Amendment. It established the United States Civil Rights Commission; among its duties is to investigate voter discrimination.
As late as 1962, programs such as Operation Eagle Eye in Arizona attempted to stymie minority voting through literacy tests. The Twenty-fourth Amendment was ratified in 1964 to prohibit poll taxes as a condition of voter registration and voting in federal elections. Many states continued to use them in state elections as a means of reducing the number of voters.
Religious test.
In several British North American colonies, before and after the 1776 Declaration of Independence, Jews, Quakers, Catholics, and/or Atheists were excluded from the franchise and/or from running for elections.
The Delaware Constitution of 1776 stated that "Every person who shall be chosen a member of either house, or appointed to any office or place of trust, before taking his seat, or entering upon the execution of his office, shall ... also make and subscribe the following declaration, to wit: I, A B. do profess faith in God the Father, and in Jesus Christ His only Son, and in the Holy Ghost, one God, blessed for evermore; and I do acknowledge the holy scriptures of the Old and New Testament to be given by divine inspiration.". This was repealed by Article I, Section II. of the 1792 Constitution: "No religious test shall be required as a qualification to any office, or public trust, under this State". The 1778 Constitution of the State of South Carolina stated, "No person shall be eligible to sit in the house of representatives unless he be of the Protestant religion", the 1777 Constitution of the State of Georgia (article 6) that "The representatives shall be chosen out of the residents in each county ... and they shall be of the Protestant religion".
With the growth in the number of Baptists in Virginia before the Revolution, who challenged the established Anglican Church, the issues of religious freedom became important to rising leaders such as James Madison. As a young lawyer, he defended Baptist preachers who were not licensed by (and were opposed by) the established state Anglican Church. He carried developing ideas about religious freedom to be incorporated into the constitutional convention of the United States.
In 1787, Article One of the United States Constitution stated that "the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature". More significantly, Article Six disavowed the religious test requirements of several states, saying: "o religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."
But, in Maryland, Jewish Americans were excluded from State office until the law requiring candidates to affirm a belief in an afterlife was repealed in 1828.
African Americans and poor whites.
At the time of ratification of the Constitution in the late 18th century, most states had property qualifications which restricted the franchise; the exact amount varied by state, but by some estimates, more than half of white men were disenfranchised. Several states granted suffrage to free men of color after the Revolution, including North Carolina. This fact was noted by Justice Benjamin Robbins Curtis' dissent in Dred Scott v Sandford (1857), as he emphasized that blacks had been considered citizens at the time the Constitution was ratified:
Of this there can be no doubt. At the time of the ratification of the Articles of Confederation, all free native-born inhabitants of the States of New Hampshire, Massachusetts, New York, New Jersey, and North Carolina, though descended from African slaves, were not only citizens of those States, but such of them as had the other necessary qualifications possessed the franchise of electors, on equal terms with other citizens.
Roe v Wade was a 1971, 1973 landmark decision by the US Supreme Court. It ruled that a state law that banned abortion was unconstitutional. The 7 to 2 decision had Chief Justice Warren E Burger and six other Justices vote for "Jane Roe" and Justices William Rehnquist and Byron White vote against it.
The decision divided the United States and is still controversial. People became divided into pro-life and pro-choice groups. Pro-life supporters argue that the unborn baby has the same right to life as other people, and the government should intervene to protect it. Pro-choice supporters believe that the unborn baby is not the same as a person, and the woman has the right to choose what she wants to do with her body and that the government should not intervene. Roe was limited by a later decision, Webster v Reproductive Health Services (1989), which allowed the regulation of abortion in some cases. Several states have considered laws banning abortions altogether.
In May 2022, a leaked draft of the Supreme Court's decision to overrule Roe v Wade was published.
Background.
The case began in 1970 in Texas as a challenge against a law banning any kind of abortion unless the mother's life was in danger. A pregnant Texas woman, Norma McCorvey (alias Jane Roe), brought a lawsuit against Henry Wade, Dallas County District Attorney, in a Texas federal court. Claiming to be a single woman and pregnant, McCorvey wanted to terminate her pregnancy. She wanted it to be done safely by a doctor but said that she could not afford to travel outside Texas. She could not get a legal abortion in Texas because her life was not in danger. Her lawsuit claimed that the Texas law violated her right to privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. Roe added she sued "on behalf of herself and all other women" in the same situation.
The case slowly made its way to the US Supreme Court. Meanwhile, McCorvey had her baby and placed it for adoption.
Majority opinion.
In a 7 to 2 decision, the court held that a woman's right to an abortion was protected by her right to privacy under the Fourteenth Amendment. The decision allowed a woman to decide whether or not to have an abortion during the first trimester. That affected the laws of 46 states.
Justice Harry Blackmun wrote the majority opinion. "We... acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires." — Justice Blackmun (1973).
Shurtleff v City of Boston, (2022), was a United States Supreme Court case related to the First Amendment to the United States Constitution.
Background.
Boston, Massachusetts allows groups to have their flags flown over Boston City Hall. A Christian group, Camp Constitution, sought to have the city fly a Christian flag. Camp Constitution and its director Hal Shurtleff teach that the United States was created as a "Christian nation." After the city denied their application, the first denial of more than a few hundred applications, Shurtleff sued.
The city prevailed in the district court and the United States Court of Appeals for the First Circuit, and Shurtleff appealed to the Supreme Court.
Supreme Court.
Certiorari was granted in the case on September 30, 2021. On May 2, 2022, the Court unanimously ruled that the City of Boston violated the First Amendment by denying Shurtleff's application to fly the flag.
Reactions.
The Joe Biden administration and the American Civil Liberties Union sided with the Christian group. The administration said that "The city cannot generally open its flagpole to flags from private civic and social groups while excluding otherwise similar groups with religious views".
Milestones of national franchise changes
1789: The Constitution grants the states the power to set voting requirements. Generally, states limited this right to property-owning or tax-paying white males (about 6% of the population).
1790: The Naturalization Act of 1790 limited citizenship to "free white persons." In practice, only white male property owners could naturalize and acquire the status of citizens, and the vote.
1792 to 1838: Free black males lose the right to vote in several Northern states including in Pennsylvania and in New Jersey.
1792 to 1856: Abolition of property qualifications for white men, from 1792 (New Hampshire) to 1856 (North Carolina) during the periods of Jeffersonian and Jacksonian democracy. However, tax-paying qualifications remained in five states in 1860—Massachusetts, Rhode Island, Pennsylvania, Delaware and North Carolina. They survived in Pennsylvania and Rhode Island until the 20th century.
In the 1820 election, there were 108,359 ballots cast. Most older states with property restrictions dropped them by the mid-1820s, except for Rhode Island, Virginia and North Carolina. No new states had property qualifications although three had adopted tax-paying qualifications – Ohio, Louisiana, and Mississippi, of which only in Louisiana were these significant and long lasting.
The 1828 presidential election was the first in which non-property-holding white males could vote in the vast majority of states. By the end of the 1820s, attitudes and state laws had shifted in favor of universal white male suffrage.
Voter turnout soared during the 1830s, reaching about 80% of the adult white male population in the 1840 presidential election. 2,412,694 ballots were cast, an increase that far outstripped natural population growth, making poor voters a huge part of the electorate. The process was peaceful and widely supported, except in the state of Rhode Island where the Dorr Rebellion of the 1840s demonstrated that the demand for equal suffrage was broad and strong, although the subsequent reform included a significant property requirement for anyone resident but born outside of the United States.
The last state to abolish property qualification was North Carolina in 1856. However, tax-paying qualifications remained in five states in 1860 – Massachusetts, Rhode Island, Pennsylvania, Delaware and North Carolina. They survived in Pennsylvania and Rhode Island until the 20th century. In addition, many poor whites were later disenfranchised.
1868: Citizenship is guaranteed to all persons born or naturalized in the United States by the Fourteenth Amendment, setting the stage for future expansions to voting rights.
1869–1920: Some states allow women to vote. Wyoming was the first state to give women voting rights in 1869.
1870: The Fifteenth Amendment to the United States Constitution prevents states from denying the right to vote on grounds of "race, color, or previous condition of servitude".
Disfranchisement after Reconstruction era began soon after. Former Confederate states passed Jim Crow laws and amendments to effectively disfranchise African-American and poor white voters through poll taxes, literacy tests, grandfather clauses and other restrictions, applied in a discriminatory manner. During this period, the Supreme Court generally upheld state efforts to discriminate against racial minorities; only later in the 20th century were these laws ruled unconstitutional. Black males in the Northern states could vote, but the majority of African Americans lived in the South.
1887: Citizenship is granted to Native Americans who are willing to disassociate themselves from their tribe by the Dawes Act, making the men technically eligible to vote.
Voting rights in the United States, specifically the enfranchisement and disenfranchisement of different groups, has been a moral and political issue throughout United States history.
Eligibility to vote in the United States is governed by the United States Constitution and by federal and state laws. Several constitutional amendments (the Fifteenth, Nineteenth, and Twenty-sixth specifically) require that voting rights of U.S. citizens cannot be abridged on account of race, color, previous condition of servitude, sex, or age (18 and older); the constitution as originally written did not establish any such rights during 1787 thru 1870, except that if a state permitted a person to vote for the "most numerous branch" of its state legislature, it was required to permit that person to vote in elections for members of the United States House of Representatives. In the absence of a specific federal law or constitutional provision, each state is given considerable discretion to establish qualifications for suffrage and candidacy within its own respective jurisdiction; in addition, states and lower level jurisdictions establish election systems, such as at-large or single member district elections for county councils or school boards. Beyond qualifications for suffrage, rules and regulations concerning voting (such as the poll tax) have been contested since the advent of Jim Crow laws and related provisions that indirectly disenfranchised racial minorities.
A historic turning point was the 1964 Supreme Court case Reynolds v Sims that ruled both houses of all state legislatures had to be based on electoral districts that were approximately equal in population size, under the "one man, one vote" principle. The Warren Court's decisions on two previous landmark cases—Baker v Carr (1962) and Wesberry v Sanders (1964)—also played a fundamental role in establishing the nationwide "one man, one vote" electoral system. Since the Voting Rights Act of 1965, the Twenty-fourth Amendment, and related laws, voting rights have been legally considered an issue related to election systems. In 1972, the Burger Court ruled that state legislatures had to redistrict every ten years based on census results; at that point, many had not redistricted for decades, often leading to a rural bias.
In cases of county or municipal elections, at-large voting has been repeatedly challenged when found to dilute the voting power of significant minorities in violation of the Voting Rights Act. In the early 20th century, numerous cities established small commission forms of government in the belief that "better government" could result from the suppression of ward politics. Commissioners were elected by the majority of voters, excluding candidates who could not afford large campaigns or who appealed to a minority. Generally the solution to such violations has been to adopt single-member districts (SMDs), but alternative election systems, such as limited voting or cumulative voting, have also been used since the late 20th century to correct for dilution of voting power and enable minorities to elect candidates of their choice.
The District of Columbia and five major territories of the United States have one non-voting member each (in the United States House of Representatives) and no representation in the United States Senate. People in the U.S. territories cannot vote for president of the United States. People in the District of Columbia can vote for the president because of the Twenty-third Amendment.
Brown v Davenport, (2022), was a case decided by the United States Supreme Court. The case concerned whether habeas relief may be granted if the Brecht v Abrahamson test alone is satisfied, or if the application of Chapman v California by the state courts was unreasonable because of AEDPA. The court held that federal courts can not grant habeas relief when state courts have already ruled on a prisoner's claim, unless the situation satisfies the test laid out in Brecht v Abrahamson, and the test laid out in AEDPA.
Background
In 2008, Ervine Davenport was convicted of first-degree murder. His conviction was challenged because during his trial he had been placed in shackles. His wrists, waist, and ankles were all restrained, but there was a curtain to prevent the jury from seeing the shackles. The state said that although the shackles were unconstitutional, they did not affect the jury's verdict. Michigan's Court of Appeals agreed with the state. The Michigan Supreme Court disagreed, however, after several jurors testified that they had seen the shackles or heard comments about them, and then sent the case back to the lower courts. The lower court again determined that the shackles did not affect the verdict, and the appellate court agreed with the state once again, and the Michigan Supreme Court denied an appeal.
Davenport then challenged his conviction in the federal courts. The district court refused to hear the case. He then petitioned the U.S. Court of Appeals for the 6th Circuit, which agreed to hear the case. This appeals court cited the Deck v Missouri decision, and quoted from Holbrook v Flynn: "shackling is inherently prejudicial". The court found that the state had not met the burden of proof necessary to show that the jury was not influenced by the shackling, and provided habeas relief. The state attempted to have the decision stayed, but the court declined.
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United States v Vaello Madero, (2022), was a United States Supreme Court case related to the constitutionality of the exclusion of United States citizens residing in Puerto Rico from the Supplemental Security Income program. In an 8 to 1 decision, the Court ruled that as Congress had been granted broad oversight of United States territories by Article Four of the United States Constitution, the exclusion of the territories by Congress from programs like Supplemental Security Income did not violate the Due Process Clause of the Fifth Amendment.
Background.
The Supplemental Security Income (SSI) program is a benefit for older or impaired citizens that are unable to take care of themselves. As established by Congress, the benefits are available to all citizens of the 50 states, the District of Columbia, and the Northern Mariana Islands, but does not cover residents of the other United States territories, including Puerto Rico.
Jose Luis Vaello Madero was a recipient of SSI benefits while living in New York, and then moved to Puetro Rico in 2013. He continued to receive SSI benefits, but eventually the government discovered his new residence, terminated the SSI benefits and sought to recover approximately $28,000 he had improperly received while in Puetro Rico. A federal district judge and the United States Court of Appeals for the First Circuit found that this exclusion violated the equal protection principle of the Fifth Amendment to the United States Constitution's due process clause, which was first established in Bolling v Sharpe.
City of Austin v Reagan National Advertising of Austin LLC, (2022), was a United States Supreme Court case dealing with the application of zoning restrictions on digital billboards in the city of Austin Texas. In a 6 to 3 ruling, the Court ruled that the Austin regulation against off-premise digital signs was content-neutral and thus should be reviewed as a facial challenge rather than a strict scrutiny following from the reasoning in Reed v Town of Gilbert.
Background.
Austin is one of 350 cities and towns in Texas that enacted bans related to digital billboards along the sides of highways, generally as a long-term effect of the Highway Beautification Act as well as to avoid distractions for drivers along these highways. Austin's city codes includes a Sign Code that distinguishes between signage that is located on-premises, including signs in shop windows and mounted street signs on the property, and those off-premises, like billboards. On-premises signs are generally unregulated and may be updated and improved without any limitations, including improvements to digital signage. Off-premises signage, however, are restricted from such improvements. In addition, the city has banned the installation of new billboards.
Around 2017, two advertising companies that operated static billboards in Austin, Lamar Advantage Outdoor Company and Reagan National Advertising of Austin, sued the city as the city council denied over 80 applications to allow them to convert existing static billboards into digital billboards. The advertising companies contended that the city had allowed some digital signage such as that on the Austin Convention Center, and believed the ban was unconstitutional. They were joined by the Austin Police Association and supporters of local emergency services, believing that such digital billboards could be used to provide information such as Amber Alerts. The case was first filed in a state district court before the city moved it to the United States District Court for the Western District of Texas in 2017. The district court selected to review the matter under intermediate scrutiny based on Metromedia Incorporated v San Diego, rather than the strict scrutiny content-based standard of Reed v Town of Gilbert, as the off-premise versus on-premise standard was content-neutral. Under this distinction, the District Court ruled for the city. Though the city amended the sign code in 2017 after litigation had started, the changes did not impact the case nor render it moot.
The advertisers appealed to the Fifth Circuit. In October 2020, the Fifth Circuit reversed the District's ruling in favor of the advertisers. The Fifth Circuit used the strict scrutiny standard of Reed to evaluate the city codes, as it determined that because to determine whether a sign was on or off-premises, one had to consider the message it was conveying, and that meant that this was a content-based restriction. Given this assessment, the rationale the city had given to maintain the ban against digital signage – to assure the safety of drivers and maintain the beauty of the landscape – were not sufficient reasons to violate the First Amendment rights of the advertisers, and thus ruled the city's sign code unconstitutional
Thompson v. Clark, (2022), was a United States Supreme Court case concerning whether a plaintiff suing for malicious prosecution must show that he or she was affirmatively exonerated of committing the alleged crime. The Supreme Court, in a 6 to 3 opinion authored by Justice Brett Kavanaugh held that no such requirement existed and that a plaintiff suing for malicious prosecution in the context of a Fourth Amendment "need only show that his prosecution ended without a conviction." Justice Samuel Alito dissented from the majority opinion and was joined by Justices Thomas and Gorsuch. Media coverage of the decision portrayed the Court's ruling as a victory for civil rights lawsuits.
Background.
Larry Thompson, a Navy veteran and postal worker, lived with his fiancée and newborn daughter in an apartment in Brooklyn, New York. When Thompson's daughter was one week old, his sister-in-law called 911 and accused Thompson of sexually abusing the child. Four police officers were dispatched to Thompson's house to investigate but Thompson refused to let them in without a search warrant. In response, the four officers forced their way into Thompson's home and attempted to restrain Thompson. Thompson resisted, was taken into custody for two days, and was subsequently charged with resisting arrest. Further investigation by law enforcement revealed no signs of child abuse. Rather than prosecute Thompson for resisting arrest, the prosecution opted to dismiss the charges. Neither the prosecutor nor the judge offered any explanation as to why the charges were dismissed.
Following the dismissal of his criminal charges, Thompson filed suit against the officers responsible for arresting him under 42 U.S.C. § 1983 and alleging, among other things, that he had been maliciously prosecuted in violation of his Fourth Amendment rights, which provided the right against unlawful seizures. Thompson's claims were dismissed at the trial level and his appeal to the Second Circuit Court of Appeals was similarly denied as both courts held that, under existing precedent, Thompson was required to show that he had been affirmatively found innocent of committing the underlying crime. On November 6, 2020, Thompson filed a petition for a writ of certiorari, which was granted on March 8, 2021. During the October 12, 2021, oral argument, the justices posed a series of hypotheticals involving the fictional character of Jean Valjean and the mythological centaur.
Ramirez v. Collier (2022), is a United States Supreme Court case related to the First Amendment to the United States Constitution and the Religious Land Use and Institutionalized Persons Act.
Background.
On July 19, 2004, 20-year-old John Henry Ramirez (born June 29, 1984), a former United States Marine, accompanied by two female acquaintances, murdered 46-year-old convenience store worker Pablo Castro outside a Times Market in Corpus Christi, Texas. Ramirez stabbed Castro a total of twenty-nine times, resulting in his death. The trio stole less than two dollars from Castro and fled the scene without entering the store. The two female acquaintances were captured a day later but Ramirez fled to Mexico and was not captured until 2008. He was convicted of murder and sentenced to death soon thereafter.
Ramirez was originally scheduled to be executed in September 2020. That warrant was withdrawn.
In 2021, Ramirez filed suit to challenge the Texas execution protocol under the Religious Land Use and Institutionalized Persons Act and the Free Exercise Clause of the First Amendment to the United States Constitution, seeking to have his minister be allowed to lay hands on his body and audibly pray during the execution process. The district court and the United States Court of Appeals for the Fifth Circuit both denied stays of execution, the latter over the dissent of Judge James L Dennis. Ramirez then filed a petition for a writ of certiorari.
Houston Community College System v. Wilson (2022), is a United States Supreme Court case related to the First Amendment to the United States Constitution.
Background.
David Buren Wilson was elected a member of the Houston Community College System's board in 2013 who was censured for repeated incidences of what other members of the Board of Trustees deemed to be behavior that was not becoming of an elected official or beneficial to the HCC system. Wilson filed suit claiming that the censure was an offense to his First Amendment rights.
Supreme Court.
Certiorari was granted in the case on April 26, 2021. In a March 24, 2022 decision, the Supreme Court ruled that Wilson's First Amendment rights were not violated by his fellow board members' censure of him because the censure did not result in any hindrance of his ability to exercise his free speech in his capacity as an elected official and member of the public. The opinion cites the fact that the use of censure by elected bodies to address the behavior and actions of their members is a practice with a long history in the United States, and it also states that the censure itself constitutes an exercise of First Amendment rights by Wilson's colleagues on the board who voted to reprimand him.
Federal Bureau of Investigation v. Fazaga, (2022), was a United States Supreme Court case dealing with the use of law enforcement surveillance under the Foreign Intelligence Surveillance Act (FISA) of 1978 and the state secrets privilege defense. The case stems from a 2011 class action lawsuit filed against the Federal Bureau of Investigation (FBI) related to one of its surveillance operations. In August 2012, the district court dismissed the case on the basis of the FBI's invocation of state secrets privilege. The Ninth Circuit overturned this ruling in part in 2019, ruling that FISA precluded the defendants from invoking the state secrets defense. However, the Supreme Court overturned the Ninth Circuit’s ruling in a unanimous decision in March 2022, stating that FISA does not override the state secrets defense.
Background.
In 2006, the FBI and the Orange County, California Joint Terrorism Task Force ran Operation Flex, a counterterrorism operation, by recruiting a fitness instructor, Craig Monteilh, to become an informant. Monteilh, under an assumed name, pretended to convert to Islam and joined the Islamic Center of Irvine (ICOI) in Irvine, California. Besides his own gathering of information, Monteilh wore and planted recording devices throughout the mosque and in homes and businesses of ICOI members that Monteilh came to know personally, passing on the information to the FBI. After about a year, Monteilh began making statements about taking violent action while in the presence of ICOI. He was reported to the police and put under a restraining order from ICOI. The FBI lost confidence in Monteilh and ended the operation.
Monteilh was convicted of grand theft in connection with the distribution of steroids in a separate matter in 2008, and ended up in California state prison. In April 2008, he was stabbed repeatedly in prison after being labeled a snitch. Monteilh filed a lawsuit against the FBI, stating that they failed to protect him after using him for their investigation, and made numerous details of Operation Flex public in 2009 prior to filing his suit against the FBI in 2010. Monteilh also spoke to these details of Operation Flex in a 2009 case the FBI brought against Ahmad Niazi, an Afghan immigrant that Monteilh had attempted to blackmail to become an FBI informant, though charges against Niazi were eventually dropped.
Wooden v. United States, (2022), was a Supreme Court of the United States case dealing with the Armed Career Criminal Act (ACCA). In a unanimous decision, the court ruled that multiple criminal offenses that a person commits during a single criminal episode do not count as separate convictions when considering the number of prior convictions a criminal has under the ACCA.
Background.
In 1997, William Wooden was involved with the burglary of a self-storage space, breaking into ten adjacent units within a single night. He was convicted on ten counts of burglary and served an eight-year prison sentence. Later, in 2014, Wooden was arrested for possession of a rifle under Georgia law when a police officer, out of uniform and without a warrant, entered his home and discovered the rifle. The charges were later dismissed due to the irregularities of the discovery, but federal officers stepped in to charge Wooden for possession of firearms under the ACCA. While a first-time conviction under the ACCA would normally lead to a sentence of 21 to 27 months, federal prosecutors believed that the ten prior convictions from the storage burglary were separate "occasions" under the ACCA, and triggered the enhanced sentencing provision of the ACCA for criminals that have been convictions on three or more separate occasions, setting a minimum sentence of 15 years.
While Wooden argued that the ten burglary convictions should be treated as a single occasion for purposes of the ACCA, the United States District Court for the Eastern District of Tennessee found in favor of the government's argument, as this stance was based on current case law for the Sixth Circuit. The decision was upheld on appeal at the Sixth Circuit.
Current scheme.
Acquisition of nationality.
There are various ways a person can acquire United States nationality, either at birth, by naturalization, or through court decisions and/or treaties.
Birth within the United States.
Section 1 of the Fourteenth Amendment provides that "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." The language has been codified in the Immigration and Nationality Act of 1952, section 301(a). Regardless of the status of the parent, unless they are in the employ of a foreign government, birth within the territory confers nationality. The Supreme Court has not explicitly ruled whether children born in the United States to unauthorized migrants present in the country are birthright nationals, but it is generally presumed they are. Birth certificates from U.S. jurisdictions are typically acceptable proof of nationality.
Through birth abroad to United States citizens.
For children born abroad, a Consular Report of Birth Abroad may be requested to confirm entitlement as a national. Section 301(c) of the Nationality Act of 1952 extends automatic nationality at birth to children born abroad to two parents who are U.S. nationals, as long as one of the parents resided for any length of time in the United States or its possessions. Section 301(g) establishes that to attain automatic nationality for a child born abroad to a citizen and a foreign national, residency in the United States or its possessions is also required. Time served as active military service was considered equivalent to residence in the U.S. For children with one national parent, requirements vary, depending on when they were born, and whether the parents were married.
Legitimate children.
Automatic nationality is extended based upon the law applicable at the time of the child's birth:
If a birth abroad occurred after May 24, 1934 but prior to December 23, 1952, the U.S. national parent must have resided in the United States or its possessions for ten years, with five of them after the age of fourteen.
If a birth abroad occurred after December 24, 1952 but prior to November 13, 1986, the U.S. national parent must have been the legal and genetic or gestational parent, and have resided in the United States or its possessions for ten years, with five of them after the age of fourteen.
If the birth occurred on or after November 14, 1986, the U.S. national must have resided in the United States for five years, two of them after the age of fourteen, previous to the birth of the child.
United States nationality law details the conditions in which a person holds United States nationality. In the United States, nationality is typically obtained through provisions in the U.S. Constitution, various laws, and international agreements. Citizenship is a right, not a privilege. While the domestic documents often use citizenship and nationality interchangeably, nationality refers to the legal means in which a person obtains a national identity and formal membership in a nation and citizenship refers to the relationship held by nationals who are also citizens.
Individuals born in any of the 50 U.S. states, the District of Columbia or almost any inhabited territory are natural-born United States citizens. The sole exception is American Samoa, where individuals are typically non-citizen U.S. nationals at birth. Foreign nationals living in any state or qualified territory may naturalize after becoming permanent residents and meeting a residence requirement (normally five years).
History.
Constitutional foundation.
Nationality defines the legal relationship between a person and a state or nation, specifying who is a member or subject of a particular nation. The rights and obligations of citizenship are defined by this relationship, as well as the protections to which nationals are entitled. Though nationality and citizenship are distinct and the United States recognizes the distinction between those who are entitled or not entitled to rights, its statutes typically use the words "citizen" and "citizenship" instead of "national" and "nationality". The Constitution of the United States did not define either nationality or citizenship, but in Article 1, section 8, clause 4 gave Congress the authority to establish a naturalization law. Before the American Civil War and adoption of the Fourteenth Amendment, there was no other language in the Constitution dealing with nationality.
Nationality laws 1790–1866.
The first statute to define nationality and naturalization in the United States was the Naturalization Act of 1790. It limited those who were eligible to be nationals as free, white persons. Following the practices of English common law, the legal system of the United States absorbed coverture, or the assumption that a woman's loyalty and obligations to her spouse were more important than her loyalty and obligation to the nation. While the Nationality Act did not forbid a woman to have her own nationality, judicial rulings and custom on domestic matters established that infants, slaves, and women were unable to participate in public life, as a result of the belief that they lacked critical judgment and had no right to exercise free will or control property. Native Americans were considered to be subjects of foreign governments and per decisions like Dred Scott v Sandford (1857) were only eligible to become naturalized if they assimilated white culture. From 1802, only fathers were able to pass on their nationality to their children. The Naturalization Act of 1804 confirmed that a woman's nationality was dependent upon her marital status and the Naturalization Act of 1855 tied a wife's nationality, and that of her children, to her husband's. A wife who married a foreign husband in this period was assumed to have suspended her nationality in favor of his. She was able to repatriate upon termination of the marriage and resumption of residence in the United States. While the 1855 Act specified that foreign wives gained U.S. nationality, the law created confusion as to whether it required American women who married aliens to take the nationality of the spouse. For example, Nellie Grant, daughter of President Ulysses S Grant, reacquired her U.S. nationality in 1898 by an Act of Congress, after a divorce from a British husband.
Current scheme.
Acquisition of nationality.
There are various ways a person can acquire United States nationality, either at birth, by naturalization, or through court decisions and/or treaties.
Birth within the United States.
Section 1 of the Fourteenth Amendment provides that "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." The language has been codified in the Immigration and Nationality Act of 1952, section 301(a). Regardless of the status of the parent, unless they are in the employ of a foreign government, birth within the territory confers nationality. The Supreme Court has not explicitly ruled whether children born in the United States to unauthorized migrants present in the country are birthright nationals, but it is generally presumed they are. Birth certificates from U.S. jurisdictions are typically acceptable proof of nationality.
Through birth abroad to United States citizens.
For children born abroad, a Consular Report of Birth Abroad may be requested to confirm entitlement as a national. Section 301(c) of the Nationality Act of 1952 extends automatic nationality at birth to children born abroad to two parents who are U.S. nationals, as long as one of the parents resided for any length of time in the United States or its possessions. Section 301(g) establishes that to attain automatic nationality for a child born abroad to a citizen and a foreign national, residency in the United States or its possessions is also required. Time served as active military service was considered equivalent to residence in the U.S. For children with one national parent, requirements vary, depending on when they were born, and whether the parents were married.
Legitimate children.
Automatic nationality is extended based upon the law applicable at the time of the child's birth:
If a birth abroad occurred after May 24, 1934 but prior to December 23, 1952, the U.S. national parent must have resided in the United States or its possessions for ten years, with five of them after the age of fourteen.
If a birth abroad occurred after December 24, 1952 but prior to November 13, 1986, the U.S. national parent must have been the legal and genetic or gestational parent, and have resided in the United States or its possessions for ten years, with five of them after the age of fourteen.
If the birth occurred on or after November 14, 1986, the U.S. national must have resided in the United States for five years, two of them after the age of fourteen, previous to the birth of the child.
Wooden v. United States, (2022), was a Supreme Court of the United States case dealing with the Armed Career Criminal Act (ACCA). In a unanimous decision, the court ruled that multiple criminal offenses that a person commits during a single criminal episode do not count as separate convictions when considering the number of prior convictions a criminal has under the ACCA.
Background.
In 1997, William Wooden was involved with the burglary of a self-storage space, breaking into ten adjacent units within a single night. He was convicted on ten counts of burglary and served an eight-year prison sentence. Later, in 2014, Wooden was arrested for possession of a rifle under Georgia law when a police officer, out of uniform and without a warrant, entered his home and discovered the rifle. The charges were later dismissed due to the irregularities of the discovery, but federal officers stepped in to charge Wooden for possession of firearms under the ACCA. While a first-time conviction under the ACCA would normally lead to a sentence of 21 to 27 months, federal prosecutors believed that the ten prior convictions from the storage burglary were separate "occasions" under the ACCA, and triggered the enhanced sentencing provision of the ACCA for criminals that have been convictions on three or more separate occasions, setting a minimum sentence of 15 years.
While Wooden argued that the ten burglary convictions should be treated as a single occasion for purposes of the ACCA, the United States District Court for the Eastern District of Tennessee found in favor of the government's argument, as this stance was based on current case law for the Sixth Circuit. The decision was upheld on appeal at the Sixth Circuit.
Supreme Court.
The Supreme Court granted Wooden's petition in February 2021. The case was argued on October 4, 2021.
The Court issued its decision on March 8, 2022. The judgment was unanimous, reversing the decision of the lower courts. The majority opinion was written by Justice Elena Kagan, joined in whole by Chief Justice John Roberts and Justices Stephen Breyer, Sonia Sotomayor, Brett Kavanaugh and all but Part 2-B by Justices Clarence Thomas, Samuel Alito, and Amy Coney Barrett. Kagan wrote that based both on the legislative history of the ACCA and the ordinary meaning of "occasion", that the ten burglary convictions that Wooden had received were all within the same occasion. "Consider first how an ordinary person (a reporter; a police officer; yes, even a lawyer) might describe Wooden’s 10 burglaries — and how she would not", Kagan wrote.
While Justice Barrett wrote a concurrence in part and in the judgment which was joined by Justice Thomas, she wrote that she took issue with Justice Kagan's use of legislative history as part of the rationale. Kagan had pointed to a 1988 amendment where Congress had made it clear that they intended that the enhanced sentencing was to come from separate episodes by referring to a person that was convicted under the enhanced provisions of the ACCA after performing a stick-up of six people at the same time. Barrett stated this was too much of a stretch for statutory interpretation and that they should defer to what Congress explicitly stated in the law.
Justice Neil Gorsuch also wrote a concurrence in judgment, joined in the most part by Justice Sotomayor. Gorsuch wrote that Wooden's case calls for the use of the rule of lenity, deferring in favor of the defendant when there is ambiguity in criminal law. Gorsuch also expressed concern that the ACCA created enhanced penalties to be decided by a judge rather than by a jury, which may be a violation of the Fifth and Sixth Amendment.
United States v Zubaydah, (2022), was a United States Supreme Court case related to the state secrets privilege.
Background.
Abu Zubaydah was captured by the United States in Pakistan in 2002 and has been alleged to be a member of Al Qaeda. While in custody he had been transferred to multiple sites, including several black sites operated by the Central Intelligence Agency (CIA), before he was transferred indefinitely to the Guantanamo Bay detention camp by 2003. While the information on these sites was classified, activities at one site in Poland became public knowledge after Zubaydah and his council requested an investigation in 2010 from Polish officials into his treatment while at a black site in Poland. The report found that Zubaydah had been subjected to waterboarding and other forms of torture at the black site under direction of two CIA contractors.
Zubaydah sought disclosures from the two contractors in 2017 through federal courts to testify to their role in his detention. The CIA objected, claiming that any information regarding the black site was classified and could not be disclosed, even if the responses that Zubaydah sought did not reveal anything about the site's location. Zubayday countered that the site's general location in Poland had already been revealed to the public through other means. He prevailed in the district court and a panel of the United States Court of Appeals for the Ninth Circuit affirmed, over Judge Ronald M. Gould's dissent. Judge Daniel Bress, joined by 11 colleagues, dissented from the denial of rehearing en banc.
Supreme Court.
Certiorari was granted in the case on April 26, 2021. Oral arguments were heard on October 6, 2021. On March 3, 2022, a fractured Court reversed the Ninth Circuit in a mostly 7–2 vote. The majority decision was written by Justice Stephen Breyer, joined in full by Chief Justice John Roberts and in part by Justices Brett Kavanaugh and Amy Coney Barrett. Breyer acknowledged that while information about the CIA black site in Poland had been identified in public, the type of information that Zubaydah sought "would tend to confirm (or deny) the existence of a CIA detention site in Poland", and thus there was reasonable cause for the government to consider any further confirmation a matter of national security, since this potentially could expose the existence of black sites in other countries.
Justice Clarence Thomas wrote a concurrence to the judgment which Justice Samuel Alito joined. Thomas agreed with the judgment of the majority, but believed that Zubaydah did not need the information he was requesting from the contractors to pursue his case. Justice Elena Kagan also wrote a concurrence, but stated the case should be remanded to the district court to review what information Zubaydah sought that could be separated from state secrets.
Justice Neil Gorsuch wrote the dissent, joined by Sonia Sotomayor. Gorsuch argued that the fact that Zubayduh was held at a black site in Poland between 2002 and 2003 was now public knowledge and thus no longer a state secret, and was concerned about the over-classification of information by the government. He also stated, in agreement with Kagan, that the case should be remanded to district court to separate out what information could be obtained without evoking any state secret privilege.
Tiered scrutiny.
Despite the undoubted importance of Brown, much of modern equal protection jurisprudence originated in other cases, though not everyone 18/2022 agrees about which other cases. Many scholars assert that the opinion of Justice Harlan Stone in United States v Carolene Products Co. (1938) contained a footnote that was a critical turning point for equal protection jurisprudence, but that assertion is disputed.
Whatever its precise origins, the basic idea of the modern approach is that more judicial scrutiny is triggered by purported discrimination that involves "fundamental rights" (such as the right to procreation), and similarly more judicial scrutiny is also triggered if the purported victim of discrimination has been targeted because he or she belongs to a "suspect classification" (such as a single racial group). This modern doctrine was pioneered in Skinner v Oklahoma (1942), which involved depriving certain criminals of the fundamental right to procreate:
When the law lays an unequal hand on those who have committed intrinsically the same quality of offense and sterilizes one and not the other, it has made as invidious a discrimination as if it had selected a particular race or nationality for oppressive treatment.
Until 1976, the Supreme Court usually ended up dealing with discrimination by using one of two possible levels of scrutiny: what has come to be called "strict scrutiny" (when a suspect class or fundamental right is involved), or instead the more lenient "rational basis review". Strict scrutiny means that a challenged statute must be "narrowly tailored" to serve a "compelling" government interest, and must not have a "less restrictive" alternative. In contrast, rational basis scrutiny merely requires that a challenged statute be "reasonably related" to a "legitimate" government interest.
However, in the 1976 case of Craig v Boren, the Court added another tier of scrutiny, called "intermediate scrutiny", regarding gender discrimination. The Court may have added other tiers too, such as "enhanced rational basis" scrutiny, and "exceedingly persuasive basis" scrutiny.
All of this is known as "tiered" scrutiny, and it has had many critics, including Justice Thurgood Marshall who argued for a "spectrum of standards in reviewing discrimination", instead of discrete tiers. Justice John Paul Stevens argued for only one level of scrutiny, given that "there is only one Equal Protection Clause". The whole tiered strategy developed by the Court is meant to reconcile the principle of equal protection with the reality that most laws necessarily discriminate in some way.
Choosing the standard of scrutiny can determine the outcome of a case, and the strict scrutiny standard is often described as "strict in theory and fatal in fact". In order to select the correct level of scrutiny, Justice Antonin Scalia urged the Court to identify rights as "fundamental" or identify classes as "suspect" by analyzing what was understood when the Equal Protection Clause was adopted, instead of based upon more subjective factors.
Gilded Age interpretation and the Plessy decision.
In the United States, 1877 marked the end of Reconstruction and the start of the Gilded Age. The first truly landmark equal protection decision by the Supreme Court was Strauder v West Virginia (1880). A black man convicted of murder by an all-white jury challenged a West Virginia statute excluding blacks from serving on juries. Exclusion of blacks from juries, the Court concluded, was a denial of equal protection to black defendants, since the jury had been "drawn from a panel from which the State has expressly excluded every man of race." At the same time, the Court explicitly allowed sexism and other types of discrimination, saying that states "may confine the selection to males, to freeholders, to citizens, to persons within certain ages, or to persons having educational qualifications. We do not believe the Fourteenth Amendment was ever intended to prohibit this. ... Its aim was against discrimination because of race or color."
The next important postwar case was the Civil Rights Cases (1883), in which the constitutionality of the Civil Rights Act of 1875 was at issue. The Act provided that all persons should have "full and equal enjoyment of ... inns, public conveyances on land or water, theaters, and other places of public amusement." In its opinion, the Court explicated what has since become known as the "state action doctrine", according to which the guarantees of the Equal Protection Clause apply only to acts done or otherwise "sanctioned in some way" by the state. Prohibiting blacks from attending plays or staying in inns was "simply a private wrong". Justice John Marshall Harlan dissented alone, saying, "I cannot resist the conclusion that the substance and spirit of the recent amendments of the Constitution have been sacrificed by a subtle and ingenious verbal criticism." Harlan went on to argue that because (1) "public conveyances on land and water" use the public highways, and (2) innkeepers engage in what is "a quasi-public employment", and (3) "places of public amusement" are licensed under the laws of the states, excluding blacks from using these services was an act sanctioned by the state.
The Equal Protection Clause is part of the first section of the Fourteenth Amendment to the United States Constitution. The clause, which took effect in 1868, provides "nor shall any State ... deny to any person within its jurisdiction the equal protection of the laws". It mandates that individuals in similar situations be treated equally by the law.
A primary motivation for this clause was to validate the equality provisions contained in the Civil Rights Act of 1866, which guaranteed that all citizens would have the guaranteed right to equal protection by law. As a whole, the Fourteenth Amendment marked a large shift in American constitutionalism, by applying substantially more constitutional restrictions against the states than had applied before the Civil War.
The meaning of the Equal Protection Clause has been the subject of much debate, and inspired the well-known phrase "Equal Justice Under Law". This clause was the basis for Brown v Board of Education (1954), the Supreme Court decision that helped to dismantle racial segregation. The clause has also been the basis for Obergefell v Hodges which legalized same-sex marriages, along with many other decisions rejecting discrimination against, and bigotry towards, people belonging to various groups.
While the Equal Protection Clause itself applies only to state and local governments, the Supreme Court held in Bolling v Sharpe (1954) that the Due Process Clause of the Fifth Amendment nonetheless imposes various equal protection requirements on the federal government via reverse incorporation.
Text.
The Equal Protection Clause is located at the end of Section 1 of the Fourteenth Amendment:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Substantive due process.
By the middle of the 19th century, "due process of law" was interpreted by the U.S. Supreme Court to mean that "it was not left to the legislative power to enact any process which might be devised. The due process article is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave Congress free to make any process 'due process of law' by its mere will."
The term "substantive due process" (SDP) is commonly used in two ways: first to identify a particular line of case law, and second to signify a particular attitude toward judicial review under the Due Process Clause. The term "substantive due process" began to take form in 1930s legal casebooks as a categorical distinction of selected due process cases, and by 1950 had been mentioned twice in Supreme Court opinions. SDP involves liberty-based due process challenges which seek certain outcomes instead of merely contesting procedures and their effects; in such cases, the Supreme Court recognizes a constitutionally-based "liberty" which then renders laws seeking to limit said "liberty" either unenforceable or limited in scope. Critics of SDP decisions typically assert that those liberties ought to be left to the more politically accountable branches of government.
Courts have viewed the due process clause, and sometimes other clauses of the Constitution, as embracing those fundamental rights that are "implicit in the concept of ordered liberty". Just what those rights are is not always clear, nor is the Supreme Court's authority to enforce such unenumerated rights clear. Some of those rights have long histories or "are deeply rooted" in American society.
The courts have largely abandoned the Lochner era approach (1897 thru 1937) when substantive due process was used to strike down minimum wage and labor laws in order to protect freedom of contract. Since then, the Supreme Court has decided that numerous other freedoms that do not appear in the plain text of the Constitution are nevertheless protected by the Constitution. If these rights were not protected by the federal courts' doctrine of substantive due process, they could nevertheless be protected in other ways; for example, it is possible that some of these rights could be protected by other provisions of the state or federal constitutions, and alternatively they could be protected by legislatures.
The Court focuses on three types of rights under substantive due process in the Fourteenth Amendment, which originated in United States v Carolene Products Company (1938). Those three types of rights are:
the first eight amendments in the Bill of Rights (for example, the Eighth Amendment);
restrictions on the political process (for example, the rights of voting, association, and free speech); and,
the rights of "discrete and insular minorities".
n United States constitutional law, a Due Process Clause is found in both the Fifth and Fourteenth Amendments to the United States Constitution, which prohibits arbitrary deprivation of "life, liberty, or property" by the government except as authorized by law.
The U.S. Supreme Court interprets these clauses broadly, concluding that they provide three protections: procedural due process (in civil and criminal proceedings); substantive due process, a prohibition against vague laws; and as the vehicle for the incorporation of the Bill of Rights.
Text.
The clause in the Fifth Amendment to the United States Constitution provides:
No person shall ... be deprived of life, liberty, or property, without due process of law.
The clause in Section One of the Fourteenth Amendment to the United States Constitution provides:
...nor shall any State deprive any person of life, liberty, or property, without due process of law.
Background.
Clause 39 of Magna Carta provided:
No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.
The phrase "due process of law" first appeared in a statutory rendition of the Magna Carta in 1354 during the reign of Edward III of England, as follows:
No man of what state or condition he be, shall be put out of his lands or tenements nor taken (taken to mean arrested or deprived of liberty by the state), nor disinherited, nor put to death, without he be brought to answer by due process of law.
Drafting.
New York was the only state that asked Congress to add "due process" language to the U.S. Constitution. New York ratified the U.S. Constitution and proposed the following amendment in 1788:
o Person ought to be taken imprisoned or disseized of his freehold, or be exiled or deprived of his Privileges, Franchises, Life, Liberty or Property but by due process of Law.
In response to this proposal from New York, James Madison drafted a due process clause for Congress. Madison cut out some language and inserted the word without, which had not been proposed by New York. Congress then adopted the exact wording that Madison proposed after Madison explained that the due process clause would not be sufficient to protect various other rights:
Although I know whenever the great rights, the trial by jury, freedom of the press, or liberty of conscience, come in question in that body , the invasion of them is resisted by able advocates, yet their Magna Carta does not contain any one provision for the security of those rights, respecting which the people of America are most alarmed.
Appropriation of name or likeness.
Although privacy is often a common-law tort, most states have enacted statutes that prohibit the use of a person's name or image if used without consent for the commercial benefit of another person.
Appropriation of name or likeness occurs when a person uses the name or likeness of another person for personal gain or commercial advantage. Action for misappropriation of right of publicity protects a person against loss caused by appropriation of personal likeness for commercial exploitation. A person's exclusive rights to control their name and likeness to prevent others from exploiting without permission is protected in similar manner to a trademark action with the person's likeness, rather than the trademark, being the subject of the protection.
Appropriation is the oldest recognized form of invasion of privacy involving the use of an individual's name, likeness, or identity without consent for purposes such as ads, fictional works, or products.
"The same action – appropriation – can violate either an individual's right of privacy or right of publicity. Conceptually, however, the two rights differ".
Privacy Law Legislation.
The Fair Credit Reporting Act.
The Fair Credit Reporting Act became effective on April 25, 1971 and implemented limitations on the information that could be collected, stored, and utilized by agencies such as credit bureaus, tenant screenings, and health agencies. The law also defined the rights granted to individuals in regards to their financial information including the right to obtain a credit score; the right to know what information is in your financial file; the right to know when your information is being accessed and used; and the right to dispute any inaccurate or incorrect information.
The privacy laws of the United States deal with several different legal concepts. One is the invasion of privacy, a tort based in common law allowing an aggrieved party to bring a lawsuit against an individual who unlawfully intrudes into their private affairs, discloses their private information, publicizes them in a false light, or appropriates their name for personal gain.
The essence of the law derives from a right to privacy, defined broadly as "the right to be let alone." It usually excludes personal matters or activities which may reasonably be of public interest, like those of celebrities or participants in newsworthy events. Invasion of the right to privacy can be the basis for a lawsuit for damages against the person or entity violating the right. These include the Fourth Amendment right to be free of unwarranted search or seizure, the First Amendment right to free assembly, and the Fourteenth Amendment due process right, recognized by the Supreme Court as protecting a general right to privacy within family, marriage, motherhood, procreation, and child rearing.
Attempts to improve consumer privacy protections in the US in the wake of the 2017 Equifax data breach, which affected 145.5 million US consumers, failed to pass in Congress.
Right to privacy.
Early years.
The early years in the development of privacy rights began with English common law, protecting "only the physical interference of life and property". The Castle doctrine analogizes a person's home to their castle – a site that is private and should not be accessible without permission of the owner. The development of tort remedies by the common law is "one of the most significant chapters in the history of privacy law". Those rights expanded to include a "recognition of man's spiritual nature, of his feelings and his intellect." Eventually, the scope of those rights broadened even further to include a basic "right to be let alone," and the former definition of "property" would then comprise "every form of possession – intangible, as well as tangible." By the late 19th century, interest in privacy grew as a result of the growth of print media, especially newspapers.
Between 1850 and 1890, U.S. newspaper circulation grew by 1,000 percent – from 100 papers with 800,000 readers to 900 papers with more than 8 million readers. In addition, newspaper journalism became more sensationalized, and was termed yellow journalism. The growth of industrialism led to rapid advances in technology, including the handheld camera, as opposed to earlier studio cameras, which were much heavier and larger. In 1884, Eastman Kodak company introduced their Kodak Brownie, and it became a mass market camera by 1901, cheap enough for the general public. This allowed people and journalists to take candid snapshots in public places for the first time.
Privacy was dealt with at the state level. For example, Pavesich v New England Life Insurance Company (in 1905) was one of the first specific endorsements of the right to privacy as derived from natural law in US law. Judith Wagner DeCew stated, "Pavesich was the first case to recognize privacy as a right in tort law by invoking natural law, common law, and constitutional values."
Samuel D. Warren and Louis D. Brandeis, partners in a new law firm, feared that this new small camera technology would be used by the "sensationalistic press." Seeing this becoming a likely challenge to individual privacy rights, they wrote the "pathbreaking" Harvard Law Review article in 1890, "The Right to Privacy". According to legal scholar Roscoe Pound, the article did "nothing less than add a chapter to our law", and in 1966 legal textbook author, Harry Kalven, hailed it as the "most influential law review article of all". In the Supreme Court case of Kyllo v United States, 533 U.S. 27 (2001), the article was cited by a majority of justices, both those concurring and those dissenting.
Assistance of Counsel.
U.S. Constitution amendment 6 provides:
In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.
The Assistance of Counsel Clause includes, as relevant here, at least six distinct rights: the right to counsel of choice, the right to appointed counsel, the right not to be constructively denied counsel, the right to conflict-free counsel, the effective assistance of counsel, and the right to represent oneself pro se.
A defendant does not have a Sixth Amendment right to counsel in any civil proceeding, including a deportation hearing (even though deportability is often a collateral consequence of criminal conviction).
Choice of counsel.
A defendant must be given an opportunity to retain counsel, even if not entitled to appointed counsel. Subject to considerations such as conflicts of interest, scheduling, counsel's authorization to practice law in the jurisdiction, and counsel's willingness to represent the defendant (whether pro bono or for a fee), criminal defendants have a right to be represented by counsel of their choice. The remedy for erroneous deprivation of first choice counsel is automatic reversal.
In Caplin & Drysdale v United States (1989), the Court held that there is no Sixth Amendment exception to criminal forfeiture; for example, after conviction, the government can seek forfeiture of already paid legal fees under a forfeiture statute, notwithstanding the effect on the defendant's ability to retain counsel of choice.
Appointment of counsel.
A defendant unable to retain counsel has the right to appointed counsel at the government's expense. While the Supreme Court recognized this right gradually, it currently applies in all federal and state criminal proceedings where the defendant faces authorized imprisonment greater than one year (a "felony") or where the defendant is actually imprisoned.
The right to appointed counsel does not extend when the defendant is not sentenced to actual imprisonment and could not have been sentenced for more than one year, even if that conviction is later used to enhance sentencing for another crime, or even if the revocation of probation may result in actual imprisonment. Nor does the defendant have the right to appointed counsel to raise frivolous arguments on direct appeal, or to raise any arguments on habeas or other collateral appeal, even if facing execution.
Trial procedure.
Compulsory process.
U.S. Constitution amendment 6 provides:
In all criminal prosecutions, the accused shall enjoy the right . . . to have a compulsory process for obtaining witnesses in his favor . . . .
The Compulsory Process Clause guarantees the defendant the right to obtain favorable witnesses at trial. For example, the Clause prevents a jurisdiction from precluding defendants from calling their co defendants as witnesses. Similarly, the Clause prevents the government from deporting a witness whose testimony would have been both material and favorable to the defense. The right does not preempt reasonable procedural rules. Thus, the right does not prevent the preclusion of defense witnesses as a discovery sanction.
Confrontation.
U.S. Constitution amendment 6 provides:
In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . .
In Crawford v Washington (2004), the Supreme Court held that the Confrontation Clause bars the "admission of testimonial statements of a witness who did not appear at trial" unless pursuant to one of the "exceptions established at the time of the founding." "When the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements . . . so long as the declarant is present at trial to defend or explain it." In Davis v Washington (2006), the Court held that the Clause places no restrictions on nontestimonial statements.
Crawford did not completely define the term "testimonial." But, Crawford held that, "whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." Laboratory reports of forensic tests are also testimonial, conferring on the defendant a right to cross-examine the analyst who certifies them.
Statements made during police interrogation are nontestimonial if circumstances objectively indicate "that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency" but are testimonial if circumstances objective indicate "that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." "he relevant inquiry is not the subjective or actual purpose of the individuals involved in a particular encounter, but rather the purpose that reasonable participants would have had, as ascertained from the individuals' statements and actions and the circumstances in which the encounter occurred."
One exception established at the founding is if the witness is "unavailable to testify, and the defendant had had a prior opportunity for cross-examination." Another such exception is "forfeiture by wrongdoing," for example where the defendant intends to obtain and obtains the absence of the witness by wrongdoing. Still another exception is "the use of testimonial statements for purposes other than establishing the truth of the matter asserted." Another possible exception is for dying declarations, for example statements made by a speaker on the brink of death while aware that he or she is dying.
The United States Constitution contains several provisions regarding the law of criminal procedure.
Petit jury and venue provisions—both traceable to enumerated complaints in the Declaration of Independence—are included in Article Three of the United States Constitution. More criminal procedure provisions are contained in the United States Bill of Rights, specifically the Fifth, Sixth, and Eighth Amendments. With the exception of the Grand Jury Clause of the Fifth Amendment, the Vicinage Clause of the Sixth Amendment, and (maybe) the Excessive Bail Clause of the Eighth Amendment, all of the criminal procedure provisions of the Bill of Rights have been incorporated to apply to the state governments.
Several of these rights regulate pre-trial procedure: access to a non-excessive bail, the right to indictment by a grand jury, the right to an information (charging document), the right to a speedy trial, and the right to be tried in a specific venue. Several of these rights are trial rights: the right to compulsory process for obtaining witnesses at trial, the right to confront witnesses at trial, the right to a public trial, the right to a trial by an impartial petit jury selected from a specific geography, and the right not to be compelled to testify against oneself. Others, such as the assistance of counsel and due process rights, have application throughout the proceeding.
If a defendant is convicted, the usual remedy for a violation of one of these provisions is reversal of the conviction or modification of the defendant's sentence. With the exception of structural errors (such as the total denial of counsel), constitutional errors are subject to harmless error analysis, although they must be harmless beyond a reasonable doubt. With the exception of a Double Jeopardy or Speedy Trial violation, the government will usually be permitted to retry the defendant. Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), these provisions are the source of nearly all reviewable errors in federal habeas review of state convictions.
A citizen’s right to a trial by jury is a central feature of the United States Constitution. It is considered a fundamental principle of the American legal system.
Laws and regulations governing jury selection and conviction/acquittal requirements vary from state to state (and are not available in courts of American Samoa), but the fundamental right itself is mentioned five times in the Constitution: Once in the original text (Article 3, Section 2) and four times in the Bill of Rights (in the Fifth, the Sixth, and the Seventh Amendments).
The American system utilizes three types of juries: Investigative grand juries, charged with determining whether enough evidence exists to warrant a criminal indictment; petit juries (also known as a trial jury), which listen to evidence presented during the course of a criminal trial and are charged with determining the guilt or innocence of the accused party; and civil juries, which are charged with evaluating civil lawsuits.
The most outstanding feature of the U.S. system is that convictions (but not necessarily acquittals) in serious criminal cases must be unanimous, which the Supreme Court of the United States affirmed to be a constitutional guarantee in Ramos v Louisiana.
Freedom of association encompasses both an individual's right to join or leave groups voluntarily, the right of the group to take collective action to pursue the interests of its members, and the right of an association to accept or decline membership based on certain criteria. It can be described as the right of a person coming together with other individuals to collectively express, promote, pursue and/or defend common interests. Freedom of association is both an individual right and a collective right, guaranteed by all modern and democratic legal systems, including the United States Bill of Rights, article 11 of the European Convention on Human Rights, section 2 of the Canadian Charter of Rights and Freedoms, and international law, including articles 20 and 23 of the Universal Declaration of Human Rights and article 22 of International Covenant on Civil and Political Rights. The Declaration on Fundamental Principles and Rights at Work by the International Labour Organization also ensures these rights.
Freedom of association is manifested through the right to join a trade union, to engage in free speech or to participate in debating societies, political parties, or any other club or association, including religious denominations and organizations, fraternities, and sport clubs and not to be compelled to belong to an association. It is closely linked with freedom of assembly, particularly under the U.S. Bill of Rights. Freedom of assembly is typically associated with political contexts. However, (for example the U.S. Constitution, human rights instruments, etcetera.) the right to freedom of association may include the right to freedom of assembly. In the United States, since the Civil Rights Act of 1968, freedom of association was largely curtailed regarding housing, education, and business when it comes to race or ethnicity.
Laissez-faire; from French: laissez faire, 'let do') is an economic system in which transactions between private groups of people are free from any form of economic interventionism (such as subsidies) deriving from special interest groups. As a system of thought, laissez-faire rests on the following axioms: "the individual is the basic unit in society, for example the standard of measurement in social calculus; the individual has a natural right to freedom; and the physical order of nature is a harmonious and self-regulating system."
Another basic principle of laissez-faire holds that markets should naturally be competitive, a rule that the early advocates of laissez-faire always emphasized. With the aims of maximizing freedom by allowing markets to self-regulate, early advocates of laissez-faire proposed a impôt unique, a tax on land rent (similar to Georgism) to replace all taxes that they saw as damaging welfare by penalizing production.
Proponents of laissez-faire argue for a near complete separation of government from the economic sector. The phrase laissez-faire is part of a larger French phrase and literally translates to "let do", but in this context the phrase usually means to "let it be" and in expression "laid back." Although never practiced with full consistency, laissez-faire capitalism emerged in the mid-18th century and was further popularized by Adam Smith's book The Wealth of Nations.
While associated with capitalism in common usage, there are also non-capitalist forms of laissez-faire, including some forms of market socialism.
Freedom of peaceful assembly, sometimes used interchangeably with the freedom of association, is the individual right or ability of people to come together and collectively express, promote, pursue, and defend their collective or shared ideas. The right to freedom of association is recognized as a human right, a political right and a civil liberty.
The terms freedom of assembly and freedom of association may be used to distinguish between the freedom to assemble in public places and the freedom to join an association. Freedom of assembly is often used in the context of the right to protest, while freedom of association is used in the context of labor rights and in the Constitution of the United States is interpreted to mean both the freedom to assemble and the freedom to join an association.
In the United States the right to petition is enumerated in the First Amendment to the United States Constitution, which specifically prohibits Congress from abridging "the right of the people peaceably to assemble, and to petition the Government for a redress of grievances".
Although often overlooked in favor of other more famous freedoms, and sometimes taken for granted, many other civil liberties are enforceable against the government only by exercising this basic right.
According to the Congressional Research Service, since the Constitution was written,
the right of petition has expanded. It is no longer confined to demands for “a redress of grievances,” in any accurate meaning of these words, but comprehends demands for an exercise by the government of its powers in furtherance of the interest and prosperity of the petitioners and of their views on politically contentious matters. The right extends to the "approach of citizens or groups of them to administrative agencies (which are both creatures of the legislature, and arms of the executive) and to courts, the third branch of Government. Certainly the right to petition extends to all departments of the Government. The right of access to the courts is indeed but one aspect of the right of petition."
Freedom of the press in the United States is legally protected by the First Amendment to the United States Constitution.
Nevertheless, freedom of the press in the United States is subject to certain restrictions, such as defamation law, a lack of protection for whistleblowers, barriers to information access and constraints caused by public and government hostility to journalists.
History.
Thirteen Colonies.
In the Thirteen Colonies before the signing of the Declaration of Independence, the media was subject to a series of regulations. British authorities attempted to prohibit the publication and circulation of information of which they did not approve.
One of the earliest cases concerning freedom of the press occurred in 1734. In a libel case against The New York Weekly Journal publisher John Peter Zenger by British governor William Cosby, Zenger was acquitted and the publication continued until 1751. At that time, there were only two newspapers in New York City and the second was not critical of Cosby's government.
U.S. Constitution.
The First Amendment permits information, ideas and opinions without interference, constraint or prosecution by the government. It was adopted on December 15, 1791, as one of the ten amendments that constitute the Bill of Rights.
Freedom of the press in the United States is legally protected by the First Amendment to the United States Constitution.
Nevertheless, freedom of the press in the United States is subject to certain restrictions, such as defamation law, a lack of protection for whistleblowers, barriers to information access and constraints caused by public and government hostility to journalists.
History.
Thirteen Colonies.
In the Thirteen Colonies before the signing of the Declaration of Independence, the media was subject to a series of regulations. British authorities attempted to prohibit the publication and circulation of information of which they did not approve.
One of the earliest cases concerning freedom of the press occurred in 1734. In a libel case against The New York Weekly Journal publisher John Peter Zenger by British governor William Cosby, Zenger was acquitted and the publication continued until 1751. At that time, there were only two newspapers in New York City and the second was not critical of Cosby's government.
U.S. Constitution.
The First Amendment permits information, ideas and opinions without interference, constraint or prosecution by the government. It was adopted on December 15, 1791, as one of the ten amendments that constitute the Bill of Rights.
Types of speech restrictions.
The Supreme Court has recognized several different types of laws that restrict speech, and subjects each type of law to a different level of scrutiny.
Content-based restrictions.
Content-based restrictions "are presumptively unconstitutional regardless of the government’s benign motive, content-neutral justification, or lack of animus toward the ideas contained in the regulated speech." Restrictions that require examining the content of speech to be applied must pass strict scrutiny.
Content-based restrictions can either discriminate based on viewpoint or subject matter. An example of a law regulating the subject matter of speech would be a city ordinance that forbids all picketing in front of a school except for labor picketing. This law would amount to subject matter discrimination because it favors one subject over another in deciding who it will allow to speak. An example of a law that regulates a speaker's viewpoint would be a policy of a government official who permitted ‘‘pro-life’’ proponents to speak on government property but banned ‘‘pro-choice’’ proponents because of their views would be engaged in ‘‘viewpoint discrimination.’’ Restrictions that apply to certain viewpoints but not others face the highest level of scrutiny, and are usually overturned, unless they fall into one of the court's special exceptions. An example of this is found in the United States Supreme Court's decision in Legal Services Corp. v Velazquez in 2001. In this case, the Court held that government subsidies cannot be used to discriminate against a specific instance of viewpoint advocacy.
The Court pointed out in Snyder v Phelps (2011) that one way to ascertain whether a restriction is content-based versus content-neutral is to consider if the speaker had delivered a different message under exactly the same circumstances: "A group of parishioners standing at the very spot where Westboro stood, holding signs that said 'God Bless America' and 'God Loves You,' would not have been subjected to liability. It was what Westboro said that exposed it to tort damages."
In the United States, freedom of speech and expression is restricted by time, place and manner— though otherwise strongly protected from government restrictions by the First Amendment to the United States Constitution, many state constitutions, and state and federal laws. Freedom of speech, also called free speech, means the free and public expression of opinions without censorship, interference and restraint by the government. The term "freedom of speech" embedded in the First Amendment encompasses the decision about what to say as well as what not to say. The Supreme Court of the United States has recognized several categories of speech that are given lesser or no protection by the First Amendment and has recognized that governments may enact reasonable time, place, or manner restrictions on speech. The First Amendment's constitutional right of free speech, which is applicable to state and local governments under the incorporation doctrine, prevents only government restrictions on speech, not restrictions imposed by private individuals or businesses unless they are acting on behalf of the government. However, laws may restrict the ability of private businesses and individuals from restricting the speech of others, such as employment laws that restrict employers' ability to prevent employees from disclosing their salary to coworkers or attempting to organize a labor union.
The First Amendment's freedom of speech right not only proscribes most government restrictions on the content of speech and ability to speak, but also protects the right to receive information, prohibits most government restrictions or burdens that discriminate between speakers, restricts the tort liability of individuals for certain speech, and prevents the government from requiring individuals and corporations to speak or finance certain types of speech with which they do not agree.
Categories of speech that are given lesser or no protection by the First Amendment include obscenity (as determined by the Miller test), fraud, child pornography, speech integral to illegal conduct, speech that incites imminent lawless action, and regulation of commercial speech such as advertising. Within these limited areas, other limitations on free speech balance rights to free speech and other rights, such as rights for authors over their works (copyright), protection from imminent or potential violence against particular persons, restrictions on the use of untruths to harm others (slander and libel), and communications while a person is in prison. When a speech restriction is challenged in court, it is presumed invalid, and the government bears the burden of convincing the court that the restriction is constitutional.
Supreme Court rulings.
Jehovah's Witnesses.
Since the 1940s, the Jehovah's Witnesses have often invoked the First Amendment's freedom of religion clauses to protect their ability to engage in the proselytizing (or preaching) that is central to their faith. This series of litigation has helped to define civil liberties case law in the United States and Canada.
In the United States of America and several other countries, the legal struggles of the Jehovah's Witnesses have yielded some of the most important judicial decisions regarding freedom of religion, press and speech. In the United States, many Supreme Court cases involving Jehovah's Witnesses are now landmark decisions of First Amendment law. Of the 72 cases involving the Jehovah's Witnesses that have been brought before the U.S. Supreme Court, the Court has ruled in favor of them 47 times. Even the cases that the Jehovah's Witnesses lost helped the U.S. to more clearly define the limits of First Amendment rights. Former Supreme Court Justice Harlan Stone jokingly suggested "The Jehovah's Witnesses ought to have an endowment in view of the aid which they give in solving the legal problems of civil liberties." "Like it or not," observed American author and editor Irving Dilliard, "Jehovah's Witnesses have done more to help preserve our freedoms than any other religious group."
Professor C S Braden wrote: "They have performed a signal service to democracy by their fight to preserve their civil rights, for in their struggle they have done much to secure those rights for every minority group in America."
"The cases that the Witnesses were involved in formed the bedrock of 1st Amendment protections for all citizens," said Paul Polidoro, a lawyer who argued the Watchtower Society's case before the Supreme Court in February 2002. "These cases were a good vehicle for the courts to address the protections that were to be accorded free speech, the free press and free exercise of religion. In addition, the cases marked the emergence of individual rights as an issue within the U.S. court system.
Before the Jehovah's Witnesses brought several dozen cases before the U.S. Supreme Court during the 1930s and 1940s, the Court had handled few cases contesting laws that restricted freedom of speech and freedom of religion. Until then, the First Amendment had only been applied to Congress and the federal government.
However, the cases brought before the Court by the Jehovah's Witnesses allowed the Court to consider a range of issues: mandatory flag salute, sedition, free speech, literature distribution and military draft law. These cases proved to be pivotal moments in the formation of constitutional law. Jehovah's Witnesses' court victories have strengthened rights including the protection of religious conduct from federal and state interference, the right to abstain from patriotic rituals and military service and the right to engage in public discourse.
During the World War II era, the U.S. Supreme Court ruled in favor of Jehovah's Witnesses in several landmark cases that helped pave the way for the modern civil rights movement. In all, Jehovah's Witnesses brought 23 separate First Amendment actions before the U.S. Supreme Court between 1938 and 1946.
In the United States, freedom of religion is a constitutionally protected right provided in the religion clauses of the First Amendment. Freedom of religion is closely associated with separation of church and state, a concept advocated by Colonial founders such as Dr. John Clarke, Roger Williams, William Penn, and later Founding Fathers such as James Madison and Thomas Jefferson.
The way freedom of religion is interpreted has changed over time in the United States and continues to be controversial. The issue was a major topic of George Washington's Farewell Address. Several American states had their own official state churches both before and after the First Amendment was passed. Illegal religion was a major cause of the 1890 thru 1891 Ghost Dance War. Starting in 1918, nearly all of the pacifist Hutterites emigrated to Canada when Joseph and Michael Hofer died following torture for conscientious objection to the draft. Some have since returned, but most Hutterites remain in Canada.
The long-term trend has been towards increasing secularization of the government. The remaining state churches were disestablished in 1820 and teacher-led public school prayer was abolished in 1962, but the military chaplaincy remains to the present day. Although most Supreme Court rulings have been accommodationist towards religion, in recent years there have been attempts to replace the freedom of religion with the more limited freedom of worship. Although the freedom of religion includes some form of recognition to the individual conscience of each citizen with the possibility of conscientious objection to law or policy, the freedom of worship does not.
Controversies surrounding the freedom of religion in the US have included building places of worship, compulsory speech, prohibited counseling, compulsory consumerism, workplace, marriage and the family, the choosing of religious leaders, circumcision of male infants, dress, education, oaths, praying for sick people, medical care, worshiping during quarantines, use of government lands sacred to Native Americans, the protection of graves, the bodily use of sacred substances, mass incarceration of clergy, both animal slaughter for meat and the use of living animals, and accommodations for employees, prisoners, and military personnel.
The Twenty-seventh Amendment to the United States Constitution prohibits any law that increases or decreases the salary of members of Congress from taking effect until after the next election of the House of Representatives has occurred. It is the most recently adopted amendment but was one of the first proposed.
The 1st Congress submitted the amendment to the states for ratification on September 25, 1789, along with 11 other proposed amendments (Articles 1 thru 12). The last ten Articles were ratified in 1791 to become the Bill of Rights, but the first two, the Twenty-seventh Amendment and the proposed Congressional Apportionment Amendment, were not ratified by enough states to come into force with them.
The proposed congressional pay amendment was largely forgotten until 1982, when Gregory Watson, a 19-year-old sophomore at the University of Texas at Austin, wrote a paper for a government class in which he claimed that the amendment could still be ratified. He later launched a nationwide campaign to complete its ratification. The amendment eventually became part of the United States Constitution, effective May 5, 1992, completing a record-setting ratification period of 202 years, 7 months, and 10 days, beating the previous record set by the Twenty-second Amendment of 3 years and 343 days.
The idea behind this amendment is to reduce corruption in the legislative branch by requiring an election before a congressperson's salary increase takes effect. The public can thus remove members of Congress from office before their salaries increase.
Text.
No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.
The Twenty-sixth Amendment (Amendment XXVI) to the United States Constitution prohibits the states and the federal government from using age as a reason for denying the right to vote to citizens of the United States who are at least eighteen years old. It was proposed by Congress on March 23, 1971, and three-fourths of the states ratified it by July 1, 1971.
Various public officials had supported lowering the voting age during the mid-20th century but were unable to gain the legislative momentum necessary for passing a constitutional amendment.
The drive to lower the voting age from 21 to 18 grew across the country during the 1960s, driven in part by the military draft held during the Vietnam War. The draft conscripted young men between the ages of 18 and 21 into the armed forces, primarily the U.S. Army, to serve in or support military combat operations in Vietnam. A common slogan of proponents of lowering the voting age was "old enough to fight, old enough to vote".
Determined to get around inaction on the issue, congressional allies included a provision for the 18-year-old vote in a 1970 bill that extended the Voting Rights Act. The Supreme Court subsequently held in the case of Oregon v Mitchell that Congress could not lower the voting age for state and local elections. Recognizing the confusion and costs that would be involved in maintaining separate voting rolls and elections for federal and state contests, Congress quickly proposed, and the states ratified the Twenty-sixth Amendment.
Text.
Section 1. The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.
The Twenty-fifth Amendment to the United States Constitution deals with presidential succession and disability.
It clarifies that the vice president becomes president if the president dies, resigns, or is removed from office, and establishes how a vacancy in the office of the vice president can be filled. It also provides for the temporary transfer of the president's powers and duties to the vice president, either on the initiative of the president alone or on the initiative of the vice president together with a majority of the president's cabinet. In either case, the vice president becomes acting president until the presidential powers and duties are returned to the president.
The amendment was submitted to the states on July 6, 1965, by the 89th Congress and was adopted on February 10, 1967, the day that the requisite number of states (38) had ratified it.
Text and effect.
Section 1: Presidential succession.
Section 1. In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.
Section 1 clarifies that in the enumerated situations the vice president becomes president, instead of merely assuming the powers and duties of the presidency as acting president. It operates automatically, without needing to be explicitly invoked.
Section 2: Vice presidential vacancy.
Section 2. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.
Section 2 provides a mechanism for filling a vacancy in the vice presidency. Before the Twenty-fifth Amendment a vice presidential vacancy continued until a new vice president took office at the start of the next presidential term; the vice presidency had become vacant several times due to death, resignation, or succession to the presidency, and these vacancies had often lasted several years.
Section 3: President's declaration of inability.
Section 3. Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.
Section 3 allows for the voluntary transfer of presidential authority to the vice president (for example, in anticipation of a medical procedure) by the president declaring in writing to be unable to discharge the powers and duties of the presidency. The vice president then assumes those powers and duties as acting president; the vice president does not become president and the president remains in office, although without authority. The president regains those powers and duties upon declaring, in writing, to be again able to discharge them.
The Twenty-fourth Amendment of the United States Constitution prohibits both Congress and the states from conditioning the right to vote in federal elections on payment of a poll tax or other types of tax. The amendment was proposed by Congress to the states on August 27, 1962, and was ratified by the states on January 23, 1964.
Southern states of the former Confederate States of America adopted poll taxes in laws of the late 19th century and new constitutions from 1890 to 1908, after the Democratic Party had generally regained control of state legislatures decades after the end of Reconstruction, as a measure to prevent African Americans and often poor whites (and following passage of the Nineteenth Amendment, women) from voting. Use of the poll taxes by states was held to be constitutional by the Supreme Court of the United States in the 1937 decision Breedlove v Suttles.
When the 24th Amendment was ratified in 1964, five states still retained a poll tax: Alabama, Arkansas, Mississippi, Texas and Virginia. The amendment prohibited requiring a poll tax for voters in federal elections. But it was not until 1966 that the U.S. Supreme Court ruled 6–3 in Harper v Virginia Board of Elections that poll taxes for any level of elections were unconstitutional. It said these violated the Equal Protection Clause of the Fourteenth Amendment. Subsequent litigation related to potential discriminatory effects of voter registration requirements has generally been based on application of this clause.
Text.
Section 1. The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.
The Twenty-third Amendment to the United States Constitution extends the right to participate in presidential elections to the District of Columbia. The amendment grants the district electors in the Electoral College as though it were a state, though the district can never have more electors than the least-populous state. The manner in which the electors are appointed is to be determined by Congress. The Twenty-third Amendment was proposed by the 86th Congress on June 16, 1960; it was ratified by the requisite number of states on March 29, 1961.
The Constitution provides that each state receives presidential electors equal to the combined number of seats it has in the Senate and the House of Representatives. As the District of Columbia is not a state, it was not entitled to any electors prior to the adoption of the Twenty-third Amendment. As early as 1888, some journalists and members of Congress favored a constitutional amendment to grant the district electoral votes, but such an amendment did not win widespread support until the rise of the civil rights movement in the 1950s. The amendment was not seen as a partisan measure, and ratification of the amendment was endorsed by President Dwight D Eisenhower and both major party candidates in the 1960 presidential election. The ratification of the amendment made the district the only entity other than the states to have any representation in the Electoral College.
The first presidential election in which the District of Columbia participated was the election of 1964. Starting with that election the District of Columbia has consistently had three members of the Electoral College, this being the constitutionally implied minimum number it is entitled to; notwithstanding the constitutionally entrenched limitation on its number of electors, the District's population has never reached the threshold where it otherwise would have been entitled to more than three. Since the passage of the Twenty-third Amendment, all but one of the district's electoral votes have been cast for the Democratic Party's presidential candidates. The Twenty-third Amendment did not grant the district voting rights in Congress, nor did it give the district the right to participate in the process that allows the Constitution to be amended. An unsuccessful proposed constitutional amendment to do this was proposed by Congress in 1978, but it was not ratified by enough states for it to be adopted. Many citizens of the district favor statehood or further constitutional amendments to address these issues.
The Twenty-second Amendment to the United States Constitution limits the number of times a person is eligible for election to the office of President of the United States to two, and sets additional eligibility conditions for presidents who succeed to the unexpired terms of their predecessors.
Until the amendment's ratification, the president had not been subject to term limits, but George Washington had established a two-term tradition that many other presidents followed. In the 1940 presidential election and the 1944 presidential election, Franklin D Roosevelt became the first president to win third and fourth terms, giving rise to concerns about a president serving an unlimited number of terms. After Roosevelt's death, Republicans and conservative Democrats were swept into Congress in the 1946 elections and were in position to propose an amendment restricting the number of presidential terms. Congress approved the Twenty-second Amendment on March 21, 1947, and submitted it to the state legislatures for ratification. That process was completed on February 27, 1951, when the requisite 36 of the 48 states had ratified the amendment (neither Alaska nor Hawaii had yet been admitted as states), and its provisions came into force on that date.
The amendment prohibits anyone who has been elected president twice from being elected again. Under the amendment, someone who fills an unexpired presidential term lasting more than two years is also prohibited from being elected president more than once. Scholars debate whether the amendment prohibits affected individuals from succeeding to the presidency under any circumstances or whether it applies only to presidential elections.
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Section 1. No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. But this Article shall not apply to any person holding the office of President when this Article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term.
Section 2. This Article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several states within seven years from the date of its submission to the states by the Congress.
The Twenty-first Amendment to the United States Constitution repealed the Eighteenth Amendment to the United States Constitution, which had mandated nationwide prohibition on alcohol. The Twenty-first Amendment was proposed by the 72nd Congress on February 20, 1933, and was ratified by the requisite number of states on December 5, 1933. It is unique among the 27 amendments of the U.S. Constitution for being the only one to repeal a prior amendment, as well as being the only amendment to have been ratified by state ratifying conventions.
The Eighteenth Amendment was ratified on January 16, 1919, the result of years of advocacy by the temperance movement. The subsequent enactment of the Volstead Act established federal enforcement of the nationwide prohibition on alcohol. As many Americans continued to drink despite the amendment, Prohibition gave rise to a profitable black market for alcohol, fueling the rise of organized crime. Throughout the 1920s, Americans increasingly came to see Prohibition as unenforceable, and a movement to repeal the Eighteenth Amendment grew until the Twenty-first Amendment was ratified in 1933.
Section 1 of the Twenty-first Amendment expressly repeals the Eighteenth Amendment. Section 2 bans the importation of alcohol into states and territories that have laws prohibiting the importation or consumption of alcohol. Several states continued to be "dry states'' in the years after the repeal of the Eighteenth Amendment, but in 1966 the last dry state (Mississippi) legalized the consumption of alcohol. Nonetheless, several states continue to closely regulate the distribution of alcohol. Many states delegate their power to ban the importation of alcohol to counties and municipalities, and there are numerous dry communities throughout the United States. Section 2 has occasionally arisen as an issue in Supreme Court cases that touch on the Commerce Clause.
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Section 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed.
Section 2. The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.
Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.
The Twentieth Amendment (Amendment XX) to the United States Constitution moved the beginning and ending of the terms of the president and vice president from March 4 to January 20, and of members of Congress from March 4 to January 3. It also has provisions that determine what is to be done when there is no president-elect. The Twentieth Amendment was adopted on January 23, 1933.
The amendment reduced the presidential transition and the "lame duck" period, by which members of Congress and the president serve the remainder of their terms after an election. The amendment established congressional terms to begin before presidential terms and that the incoming Congress, rather than the outgoing one, would hold a contingent election if the Electoral College deadlocked regarding either the presidential or vice presidential elections.
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Section 1. The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.
Section 2. The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January unless they shall by law appoint a different day.
Section 3. If, at the time fixed for the beginning of the term of the President, the President-elect shall have died, the Vice President-elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President-elect shall have failed to qualify, then the Vice President-elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President-elect nor a Vice President-elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.
Section 4. The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.
Section 5. Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this article.
Section 6. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission.
Legal challenges.
The U.S. Supreme Court unanimously upheld the amendment's validity in Leser v Garnett. Maryland citizens Mary D. Randolph, "'a colored female citizen' of 331 West Biddle Street", and Cecilia Street Waters, "a white woman, of 824 North Eutaw Street", applied for and were granted registration as qualified Baltimore voters on October 12, 1920. To have their names removed from the list of qualified voters, Oscar Leser and others brought suit against the two women on the sole grounds that they were women, arguing that they were not eligible to vote because the Constitution of Maryland limited suffrage to men and the Maryland legislature had refused to vote to ratify the Nineteenth Amendment. Two months before, on August 26, 1920, the federal government had proclaimed the amendment incorporated into the Constitution.
Leser said the amendment "destroyed State autonomy" because it increased Maryland's electorate without the state's consent. The Supreme Court answered that the Nineteenth Amendment had similar wording to the Fifteenth Amendment, which had expanded state electorates without regard to race for more than fifty years by that time despite rejection by six states (including Maryland). Leser further argued that the state constitutions in some ratifying states did not allow their legislatures to ratify. The Court replied that state ratification was a federal function granted under Article V of the U.S. Constitution and not subject to a state constitution's limitations. Finally, those bringing suit asserted the Nineteenth Amendment was not adopted because Tennessee and West Virginia violated their own rules of procedure. The Court ruled that the point was moot because Connecticut and Vermont had subsequently ratified the amendment, providing a sufficient number of state ratifications to adopt the Nineteenth Amendment even without Tennessee and West Virginia. The Court also ruled that Tennessee's and West Virginia's certifications of their state ratifications was binding and had been duly authenticated by their respective Secretaries of State. As a result of the Court's ruling, Randolph and Waters were permitted to become registered voters in Baltimore.
Another challenge to the Nineteenth Amendment's adoption was dismissed by the Supreme Court in Fairchild v Hughes, because the party bringing the suit, Charles S. Fairchild, came from a state that already allowed women to vote and so Fairchild lacked standing.
Woman suffrage and World War I patriotism.
When World War I started in 1914, women in eight states had already won the right to vote, but support for a federal amendment was still tepid. The war provided a new urgency to the fight for the vote. When the U.S. entered World War I, Catt made the controversial decision to support the war effort, despite the widespread pacifist sentiment of many of her colleagues and supporters. As women joined the labor force to replace men serving in the military and took visible positions as nurses, relief workers, and ambulance drivers to support the war effort, NAWSA organizers argued that women's sacrifices made them deserving of the vote. By contrast, the NWP used the war to point out the contradictions of fighting for democracy abroad while restricting it at home. In 1917, the NWP began picketing the White House to bring attention to the cause of women's suffrage.
In 1914 the constitutional amendment proposed by Sargent, which was nicknamed the "Susan B. Anthony Amendment", was once again considered by the Senate, where it was again rejected. In April 1917 the "Anthony Amendment", which eventually became the Nineteenth Amendment, was reintroduced in the House and Senate. Picketing NWP members, nicknamed the "Silent Sentinels", continued their protests on the sidewalks outside the White House. On July 4, 1917, police arrested 168 of the protesters, who were sent to prison in Lorton, Virginia. Some of these women, including Lucy Burns and Alice Paul, went on hunger strikes; some were force-fed while others were otherwise harshly treated by prison guards. The release of the women a few months later was largely due to increasing public pressure.
Final congressional challenges.
In 1918, President Wilson faced a difficult midterm election and would have to confront the issue of women's suffrage directly. Fifteen states had extended equal voting rights to women and, by this time, the President fully supported the federal amendment. A proposal brought before the House in January 1918 passed by only one vote. The vote was then carried into the Senate where Wilson made an appeal on the Senate floor, an unprecedented action at the time. In a short speech, the President tied women's right to vote directly to the war, asking, "Shall we admit them only to a partnership of suffering and sacrifice and toil and not to a partnership of privilege and right?" On September 30, 1918, the proposal fell two votes short of passage, prompting the NWP to direct campaigning against senators who had voted against the amendment.
Between January 1918 and June 1919, the House and Senate voted on the federal amendment five times. Each vote was extremely close and Southern Democrats continued to oppose giving women the vote. Suffragists pressured President Wilson to call a special session of Congress and he agreed to schedule one for May 19, 1919. On May 21, 1919, the amendment passed the House 304 to 89, with 42 votes more than was necessary. On June 4, 1919, it was brought before the Senate and, after Southern Democrats abandoned a filibuster, 36 Republican Senators were joined by 20 Democrats to pass the amendment with 56 yeas, 25 nays, and 14 not voting.
The Nineteenth Amendment to the United States Constitution prohibits the United States and its states from denying the right to vote to citizens of the United States on the basis of sex, in effect recognising the right of women to a vote. The amendment was the culmination of a decades-long movement for women's suffrage in the United States, at both the state and national levels, and was part of the worldwide movement towards women's suffrage and part of the wider women's rights movement. The first women's suffrage amendment was introduced in Congress in 1878. However, a suffrage amendment did not pass the House of Representatives until May 21, 1919, which was quickly followed by the Senate, on June 4, 1919. It was then submitted to the states for ratification, achieving the requisite 36 ratifications to secure adoption, and thereby go into effect, on August 18, 1920. The Nineteenth Amendment's adoption was certified on August 26, 1920.
Before 1776, women had a vote in several of the colonies in what would become the United States, but by 1807 every state constitution had denied women even limited suffrage. Organizations supporting women's rights became more active in the mid-19th century and, in 1848, the Seneca Falls convention adopted the Declaration of Sentiments, which called for equality between the sexes and included a resolution urging women to secure the vote. Pro-suffrage organizations used a variety of tactics including legal arguments that relied on existing amendments. After those arguments were struck down by the U.S. Supreme Court, suffrage organizations, with activists like Susan B. Anthony and Elizabeth Cady Stanton, called for a new constitutional amendment guaranteeing women the same right to vote possessed by men.
By the late 19th century, new states and territories, particularly in the West, began to grant women the right to vote. In 1878, a suffrage proposal that would eventually become the Nineteenth Amendment was introduced to Congress, but was rejected in 1887. In the 1890s, suffrage organizations focused on a national amendment while still working at state and local levels. Lucy Burns and Alice Paul emerged as important leaders whose different strategies helped move the Nineteenth Amendment forward. Entry of the United States into World War I helped to shift public perception of women's suffrage. The National American Woman Suffrage Association, led by Carrie Chapman Catt, supported the war effort, making the case that women should be rewarded with enfranchisement for their patriotic wartime service. The National Woman's Party staged marches, demonstrations, and hunger strikes while pointing out the contradictions of fighting abroad for democracy while limiting it at home by denying women the right to vote. The work of both organizations swayed public opinion, prompting President Wilson to announce his support of the suffrage amendment in 1918. It passed in 1919 and was adopted in 1920, withstanding two legal challenges, Leser v Garnett and Fairchild v Hughes.
The Nineteenth Amendment enfranchised 26 million American women in time for the 1920 U.S. presidential election, but the powerful women's voting bloc that many politicians feared failed to fully materialize until decades later. Additionally, the Nineteenth Amendment failed to fully enfranchise African American, Asian American, Hispanic American, and Native American women (see § Limitations). Shortly after the amendment's adoption, Alice Paul and the National Woman's Party began work on the Equal Rights Amendment, which they believed was a necessary additional step towards equality.
The Volstead Act.
This act was conceived and introduced by Wayne Wheeler, a leader of the Anti-Saloon League, a group which found alcohol responsible for almost all of society's problems and which also ran many campaigns against the sale of alcohol. The law was also heavily supported by then-Judiciary Chairman Andrew Volstead from Minnesota, and was named in his honor. The act in its written form laid the groundwork of prohibition, defining the procedures for banning the distribution of alcohol including their production and distribution.
Volstead had once before introduced an early version of the law to Congress. It was first brought to the floor on May 27, 1919, where it met heavy resistance from Democratic senators. Instead, the so-called "wet law" was introduced, an attempt to end the wartime prohibition laws put into effect much earlier. The debate over prohibition would rage for that entire session, as the House was divided among what would become known as the "bone-drys" and the "wets". Because Republicans held the majority of the House of Representatives, the Volstead Act finally passed on July 22, 1919, with 287 in favor and 100 opposed.
However, the act was largely a failure, proving unable to prevent mass distribution of alcoholic beverages and also inadvertently causing a massive increase in organized crime. The act would go on to define the terms and enforcement methods of prohibition, until the passing of the 21st amendment in 1933 effectively repealed it.
Controversies.
The proposed amendment was the first to contain a provision setting a deadline for its ratification. That clause of the amendment was challenged, with the case reaching the US Supreme Court. It upheld the constitutionality of such a deadline in Dillon v Gloss (1921). The Supreme Court also upheld the ratification by the Ohio legislature in Hawke v Smith (1920), despite a petition requiring that the matter go to ballot.
The Eighteenth Amendment of the United States Constitution established the prohibition of alcohol in the United States. The amendment was proposed by Congress on December 18, 1917 and was ratified by the requisite number of states on January 16, 1919. The Eighteenth Amendment was repealed by the Twenty-first Amendment on December 5, 1933. It is the only amendment to be repealed.
The Eighteenth Amendment was the product of decades of efforts by the temperance movement, which held that a ban on the sale of alcohol would ameliorate poverty and other societal issues. The Eighteenth Amendment declared the production, transport, and sale of intoxicating liquors illegal, though it did not outlaw the actual consumption of alcohol. Shortly after the amendment was ratified, Congress passed the Volstead Act to provide for the federal enforcement of Prohibition. The Volstead Act declared that liquor, wine, and beer all qualified as intoxicating liquors and were therefore prohibited. Under the terms of the Eighteenth Amendment, Prohibition began on January 17, 1920, one year after the amendment was ratified.
Although the Eighteenth Amendment led to a decline in alcohol consumption in the United States, nationwide enforcement of Prohibition proved difficult, particularly in cities. Rum-running (bootlegging) and speakeasies became popular in many areas. Public sentiment began to turn against Prohibition during the 1920s, and 1932 Democratic presidential nominee Franklin D. Roosevelt called for its repeal. The Twenty-first Amendment finally did repeal the Eighteenth in 1933, making the Eighteenth Amendment the only one so far to be repealed in its entirety.
Text.
Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all the territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.
Section 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.
Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.
Proposal in Congress.
In 1911, the House of Representatives passed House Joint Resolution 39 proposing a constitutional amendment for direct election of senators. The original resolution passed by the House contained the following clause:
The times, places, and manner of holding elections for Senators shall be as prescribed in each State by the legislature thereof.
This so-called "race rider" clause would have strengthened the powers of states over senatorial elections and weakened those of Congress by overriding Congress's power to override state laws affecting the manner of senatorial elections.
Since the turn of the century, most blacks in the South, and many poor whites, had been disenfranchised by state legislatures passing constitutions with provisions that were discriminatory in practice. This meant that their millions of population had no political representation. Most of the South had one-party states. When the resolution came before the Senate, a substitute resolution, one without the rider, was proposed by Joseph L Bristow of Kansas. It was adopted by a vote of 64 to 24, with four not voting. Nearly a year later, the House accepted the change. The conference report that would become the Seventeenth Amendment was approved by the Senate 42 to 36 on April 12, 1912, and by the House 238 to 39, with 110 not voting on May 13, 1912.
The Seventeenth Amendment to the United States Constitution established the direct election of United States senators in each state. The amendment supersedes Article I, §3, Clauses 1 and 2 of the Constitution, under which senators were elected by state legislatures. It also alters the procedure for filling vacancies in the Senate, allowing for state legislatures to permit their governors to make temporary appointments until a special election can be held.
The amendment was proposed by the 62nd Congress in 1912 and became part of the Constitution on April 8, 1913, on ratification by three-quarters (36) of the state legislatures. Sitting senators were not affected until their existing terms expired. The transition began with two special elections in Georgia and Maryland, then in earnest with the November 1914 election; it was complete on March 4, 1919, when the senators chosen at the November 1918 election took office.
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The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.
When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.
This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.
Background.
Original composition.
Originally, under Article I, § 3, Clauses 1 and 2 of the Constitution, each state legislature elected its state's senators for a six-year term. Each state, regardless of size, is entitled to two senators as part of the Connecticut Compromise between the small and large states. This contrasted with the House of Representatives, a body elected by popular vote, and was described as an uncontroversial decision; at the time, James Wilson was the sole advocate of popularly electing the Senate, but his proposal was defeated 10–1. There were many advantages to the original method of electing senators. Prior to the Constitution, a federal body was one where states effectively formed nothing more than permanent treaties, with citizens retaining their loyalty to their original state. However, under the new Constitution, the federal government was granted substantially more power than before. Having the state legislatures elect the senators reassured anti-federalists that there would be some protection against the federal government's swallowing up states and their powers, and providing a check on the power of the federal government.
Pollock overruled.
The Sixteenth Amendment removed the precedent set by the Pollock decision.
Professor Sheldon D Pollack at the University of Delaware wrote:
On February 25, 1913, in the closing days of the Taft administration, Secretary of State Philander C Knox, a former Republican senator from Pennsylvania and attorney general under McKinley and Roosevelt, certified that the amendment had been properly ratified by the requisite number of state legislatures. Three more states ratified the amendment soon after, and eventually the total reached 42. The remaining six states either rejected the amendment or took no action at all. Notwithstanding the many frivolous claims repeatedly advanced by so-called tax protestors, the Sixteenth Amendment to the Constitution was duly ratified as of February 3, 1913. With that, the Pollock decision was overturned, restoring the status quo ante. Congress once again had the "power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration".
From William D Andrews, Professor of Law, Harvard Law School:
In 1913 the Sixteenth Amendment to the Constitution was adopted, overruling Pollock, and the Congress then levied an income tax on both corporate and individual incomes.
From Professor Boris Bittker, who was a tax law professor at Yale Law School:
As construed by the Supreme Court in the Brushaber case, the power of Congress to tax income derives from Article I, Section 8, Clause 1, of the original Constitution rather than from the Sixteenth Amendment; the latter simply eliminated the requirement that an income tax, to the extent that it is a direct tax, must be apportioned among the states. A corollary of this conclusion is that any direct tax that is not imposed on "income" remains subject to the rule of apportionment. Because the Sixteenth Amendment does not purport to define the term "direct tax," the scope of that constitutional phrase remains as debatable as it was before 1913; but the practical significance of the issue was greatly reduced once income taxes, even if direct, were relieved from the requirement of apportionment.
Professor Erik Jensen at Case Western Reserve University Law School has written:
was a response to the Income Tax Cases (Pollock v Farmers' Loan & Trust Co.), and it exempts only "taxes on incomes" from the apportionment rule that otherwise applies to direct taxes.
Professor Calvin H. Johnson, a tax professor at the University of Texas School of Law, has written:
The Sixteenth Amendment to the Constitution, ratified in 1913, was written to allow Congress to tax income without the hobbling apportionment requirement. ... Pollock was itself overturned by the Sixteenth Amendment as to apportionment of income ...
The Sixteenth Amendment to the United States Constitution allows Congress to levy an income tax without apportioning it among the states on the basis of population. It was passed by Congress in 1909 in response to the 1895 Supreme Court case of Pollock v Farmers' Loan & Trust Co. The Sixteenth Amendment was ratified by the requisite number of states on February 3, 1913, and effectively overruled the Supreme Court's ruling in Pollock.
Prior to the early 20th century, most federal revenue came from tariffs rather than taxes, although Congress had often imposed excise taxes on various goods. The Revenue Act of 1861 had introduced the first federal income tax, but that tax was repealed in 1872. During the late nineteenth century, various groups, including the Populist Party, favored the establishment of a progressive income tax at the federal level. These groups believed that tariffs unfairly taxed the poor, and they favored using the income tax to shift the tax burden onto wealthier individuals. The 1894 Wilson–Gorman Tariff Act contained an income tax provision, but the tax was struck down by the Supreme Court in the case of Pollock v Farmers' Loan & Trust Co. In its ruling, the Supreme Court did not hold that all federal income taxes were unconstitutional, but rather held that income taxes on rents, dividends, and interest were direct taxes and thus had to be apportioned among the states on the basis of population.
For several years after Pollock, Congress did not attempt to implement another income tax, largely due to concerns that the Supreme Court would strike down any attempt to levy an income tax. In 1909, during the debate over the Payne–Aldrich Tariff Act, Congress proposed the Sixteenth Amendment to the states. Though conservative Republican leaders had initially expected that the amendment would not be ratified, a coalition of Democrats, progressive Republicans, and other groups ensured that the necessary number of states ratified the amendment. Shortly after the amendment was ratified, Congress imposed a federal income tax with the Revenue Act of 1913. The Supreme Court upheld that income tax in the 1916 case of Brushaber v Union Pacific Railroad Co., and the federal government has continued to levy an income tax since 1913.
Application.
In the year of the 150th anniversary of the Fifteenth Amendment Columbia University history professor and historian Eric Foner said about the Fifteenth Amendment as well as its history during the Reconstruction era and Post-Reconstruction era:
It's a remarkable accomplishment given that slavery was such a dominant institution before the Civil War. But the history of the 15th Amendment also shows rights can never be taken for granted: Things can be achieved and things can be taken away.
Reconstruction.
African Americans called the amendment the nation's "second birth" and a "greater revolution than that of 1776" according to historian Eric Foner in his book The Second Founding: How the Civil War and Reconstruction Remade the Constitution. The first black person known to vote after the amendment's adoption was Thomas Mundy Peterson, who cast his ballot on March 31, 1870, in a Perth Amboy, New Jersey referendum election adopting a revised city charter. African Americans—many of them newly freed slaves—put their newfound freedom to use, voting in scores of black candidates. During Reconstruction, 16 black men served in Congress and 2,000 black men served in elected local, state and federal positions according to Columbia University history professor Eric Foner.
In United States v Reese (1876), the first U.S. Supreme Court decision interpreting the Fifteenth Amendment, the Court interpreted the amendment narrowly, upholding ostensibly race-neutral limitations on suffrage including poll taxes, literacy tests, and a grandfather clause that exempted citizens from other voting requirements if their grandfathers had been registered voters. The Court also stated that the amendment does not confer the right of suffrage, but it invests citizens of the United States with the right of exemption from discrimination in the exercise of the elective franchise on account of their race, color, or previous condition of servitude, and empowers Congress to enforce that right by "appropriate legislation". The Court wrote:
The Fifteenth Amendment does not confer the right of suffrage upon anyone. It prevents the States, or the United States, however, from giving preference, in this particular, to one citizen of the United States over another on account of race, color, or previous condition of servitude. Before its adoption, this could be done. It was as much within the power of a State to exclude citizens of the United States from voting on account of race, & color, as it was on account of age, property, or education. Now it is not. If citizens of one race having certain qualifications are permitted by law to vote, those of another having the same qualifications must be. Previous to this amendment, there was no constitutional guaranty against this discrimination: now there is. It follows that the amendment has invested the citizens of the United States with a new constitutional right which is within the protecting power of Congress. That right is an exemption from discrimination in the exercise of the elective franchise on account of race, color, or previous condition of servitude. Under the express provisions of the second section of the amendment, Congress may enforce it by "appropriate legislation".
The Fifteenth Amendment (Amendment XV) to the United States Constitution prohibits the federal government and each state from denying or abridging a citizen's right to vote "on account of race, color, or previous condition of servitude." It was ratified on February 3, 1870, as the third and last of the Reconstruction Amendments.
In the final years of the American Civil War and the Reconstruction Era that followed, Congress repeatedly debated the rights of the millions of former black slaves. By 1869, amendments had been passed to abolish slavery and provide citizenship and equal protection under the laws, but the election of Ulysses S grant to the presidency in 1868 convinced a majority of Republicans that protecting the franchise of black male voters was important for the party's future. On February 26, 1869, after rejecting more sweeping versions of a suffrage amendment, Congress proposed a compromise amendment banning franchise restrictions on the basis of race, color, or previous servitude. After surviving a difficult ratification fight, the amendment was certified as duly ratified and part of the Constitution on March 30, 1870.
United States Supreme Court decisions in the late nineteenth century interpreted the amendment narrowly. From 1890 to 1910, southern states adopted new state constitutions and enacted laws that raised barriers to voter registration. This resulted in most black voters and many poor white ones being disenfranchised by poll taxes and discriminatory literacy tests, among other barriers to voting, from which white male voters were exempted by grandfather clauses. A system of white primaries and violent intimidation by white groups also suppressed black participation.
In the twentieth century, the Court began to interpret the amendment more broadly, striking down grandfather clauses in Guinn v United States (1915) and dismantling the white primary system in the "Texas primary cases" (1927 thru 1953). Voting rights were further incorporated into the Constitution in the Nineteenth Amendment (voting rights for women) and the Twenty-fourth Amendment (prohibiting poll taxes in federal elections). The Voting Rights Act of 1965 provided federal oversight of elections in discriminatory jurisdictions, banned literacy tests and similar discriminatory devices, and created legal remedies for people affected by voting discrimination. The Court also found poll taxes in state elections unconstitutional under the Fourteenth Amendment in Harper v Virginia State Board of Elections (1966).
Text.
Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.
Section 3: Disqualification from office for insurrection or rebellion.
Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.
Soon after losing the Civil War in 1865, states that had been part of the Confederacy began to send "unrepentant" former Confederates (such as the Confederacy's former vice president, Alexander H Stephens) to Washington as Senators and Representatives. Congress refused to seat them and drafted Section 3 to perpetuate, as a constitutional imperative, that any who violate their oath to the Constitution are to be barred from public office. Section 3 disqualifies from federal or state office anyone who, having taken an oath as a public official to support the Constitution, subsequently engages in "insurrection or rebellion" against the United States or gives "aid and comfort" to its enemies. Southerners strongly opposed it, arguing it would hurt reunification of the country.
Section 3 does not specify how it is to be invoked, but by precedent disqualification is imposed by simple majorities of the House and Senate (separately), and can be removed by a supermajority of each.
After the amendment's adoption in 1868, disqualification was seldom enforced in the South. At the urging of President Ulysses S Grant, in 1872 Congress passed the Amnesty Act, which removed the disqualification from all but the most senior Confederates. In 1898, as a "gesture of national unity" during the Spanish–American War, Congress passed another law broadening the amnesty. Congress posthumously lifted the disqualification from Confederate general Robert E Lee in 1975, and Confederate president Jefferson Davis in 1978. These waivers do not bar Section 3 from being used today.
Since Reconstruction, Section 3 has been invoked only once: it was used to block Socialist Party of America member Victor L Berger of Wisconsin – convicted of violating the Espionage Act for opposing US entry into World War I – from assuming his seat in the House of Representatives in 1919 and 1920. Berger's conviction was overturned by the Supreme Court in Berger v United States (1921), after which he was elected to three successive terms in the 1920s; he was seated for all three terms.
State actor doctrine
Before United States v Cruikshank, (1876) was decided by the United States Supreme Court, the case was decided as a circuit case (Federal Cases No. 14897). Presiding of this circuit case was judge Joseph P Bradley who wrote at page 710 of Federal Cases No. 14897 regarding the Fourteenth Amendment to the United States Constitution:
It is a guarantee of protection against the acts of the state government itself. It is a guarantee against the exertion of arbitrary and tyrannical power on the part of the government and legislature of the state, not a guarantee against the commission of individual offenses, and the power of Congress, whether express or implied, to legislate for the enforcement of such a guarantee does not extend to the passage of laws for the suppression of crime within the states. The enforcement of the guarantee does not require or authorize Congress to perform 'the duty that the guarantee itself supposes it to be the duty of the state to perform, and which it requires the state to perform'.
The above quote was quoted by United Supreme Court in United States v Harris, (1883) and supplemented by a quote from the majority opinion in United States v Cruikshank, (1876) as written by Chief Justice Morrison Waite:
The Fourteenth Amendment prohibits a State from depriving any person of life, liberty, or property without due process of law, and from denying to any person within its jurisdiction the equal protection of the laws, but it adds nothing to the rights of one citizen as against another. It simply furnishes an additional guarantee against any encroachment by the States upon the fundamental rights which belong to every citizen as a member of society. The duty of protecting all its citizens in the enjoyment of an equality of rights was originally assumed by the States, and it still remains there. The only obligation resting upon the United States is to see that the States do not deny the right. This the Amendment guarantees, but no more. The power of the National Government is limited to the enforcement of this guarantee.
Individual liberties guaranteed by the United States Constitution, other than the Thirteenth Amendment's ban on slavery, protect not against actions by private persons or entities, but only against actions by government officials. Regarding the Fourteenth Amendment, the Supreme Court ruled in Shelley v Kraemer (1948): "The action inhibited by the first section of the Fourteenth Amendment is only such action as may fairly be said to be that of the States. That Amendment erects no shield against merely private conduct, however discriminatory or wrongful." The court added in Civil Rights Cases (1883): "It is State action of a particular character that is prohibited. Individual invasion of individual rights is not the subject matter of the amendment. It has a deeper and broader scope. It nullifies and makes void all State legislation, and State action of every kind, which impairs the privileges and immunities of citizens of the United States, or which injures them in life, liberty, or property without due process of law, or which denies to any of them the equal protection of the laws."
Procedural due process
When the government seeks to burden a person's protected liberty interest or property interest, the Supreme Court has held that procedural due process requires that, at a minimum, the government provide the person notice, an opportunity to be heard at an oral hearing, and a decision by a neutral decision-maker. For example, such a process is due when a government agency seeks to terminate civil service employees, expel a student from public school, or cut off a welfare recipient's benefits. The Court has also ruled that the Due Process Clause requires judges to recuse themselves in cases where the judge has a conflict of interest. For example, in Caperton v A T Massey Coal Company (2009), the Court ruled that a justice of the Supreme Court of Appeals of West Virginia had to recuse himself from a case involving a major contributor to his campaign for election to that court.
Incorporation.
While many state constitutions are modeled after the United States Constitution and federal laws, those state constitutions did not necessarily include provisions comparable to the Bill of Rights. In Barron v Baltimore (1833), the Supreme Court unanimously ruled that the Bill of Rights restrained only the federal government, not the states. However, the Supreme Court has subsequently held that most provisions of the Bill of Rights apply to the states through the Due Process Clause of the Fourteenth Amendment under a doctrine called "incorporation".
Whether incorporation was intended by the amendment's framers, such as John Bingham, has been debated by legal historians. According to legal scholar Akhil Reed Amar, the framers and early supporters of the Fourteenth Amendment believed that it would ensure that the states would be required to recognize the same individual rights as the federal government; all these rights were likely understood as falling within the "privileges or immunities" safeguarded by the amendment.
By the latter half of the 20th century, nearly all of the rights in the Bill of Rights had been applied to the states. The Supreme Court has held that the amendment's Due Process Clause incorporates all of the substantive protections of the First, Second, Fourth, Fifth (except for its Grand Jury Clause) and Sixth Amendments, along with the Excessive Fines Clause and Cruel and Unusual Punishment Clause of the Eighth Amendment. While the Third Amendment has not been applied to the states by the Supreme Court, the Second Circuit ruled that it did apply to the states within that circuit's jurisdiction in Engblom v Carey. The Seventh Amendment right to jury trial in civil cases has been held not to be applicable to the states, but the amendment's Re-Examination Clause does apply to "a case tried before a jury in a state court and brought to the Supreme Court on appeal".
The Excessive Fines Clause of the Eighth Amendment became the last right to be incorporated when the Supreme Court ruled in Timbs v Indiana (2019) that right to apply to the states.
Equal Protection Clause
Privileges or Immunities Clause.
The Privileges or Immunities Clause, which protects the privileges and immunities of national citizenship from interference by the states, was patterned after the Privileges and Immunities Clause of Article IV, which protects the privileges and immunities of state citizenship from interference by other states. In the Slaughter-House Cases (1873), the Supreme Court concluded that the Constitution recognized two separate types of citizenship—"national citizenship" and "state citizenship"—and the Court held that the Privileges or Immunities Clause prohibits states from interfering only with privileges and immunities possessed by virtue of national citizenship. The Court concluded that the privileges and immunities of national citizenship included only those rights that "owe their existence to the Federal government, its National character, its Constitution, or its laws". The Court recognized few such rights, including access to sea-ports and navigable waterways, the right to run for federal office, the protection of the federal government while on the high seas or in the jurisdiction of a foreign country, the right to travel to the seat of government, the right to peaceably assemble and petition the government, the privilege of the writ of habeas corpus, and the right to participate in the government's administration. This decision has not been overruled and has been specifically reaffirmed several times. Largely as a result of the narrowness of the Slaughter-House opinion, this clause subsequently lay dormant for well over a century.
In Saenz v Roe (1999), the Court ruled that a component of the "right to travel" is protected by the Privileges or Immunities Clause:
Despite fundamentally differing views concerning the coverage of the Privileges or Immunities Clause of the Fourteenth Amendment, most notably expressed in the majority and dissenting opinions in the Slaughter-House Cases (1873), it has always been common ground that this Clause protects the third component of the right to travel. Writing for the majority in the Slaughter-House Cases, Justice Miller explained that one of the privileges conferred by this Clause "is that a citizen of the United States can, of his own volition, become a citizen of any State of the Union by a bona fide residence therein, with the same rights as other citizens of that State". (emphasis added)
Justice Miller actually wrote in the Slaughter-House Cases that the right to become a citizen of a state (by residing in that state) "is conferred by the very article under consideration" (emphasis added), rather than by the "clause" under consideration.
In McDonald v Chicago (2010), Justice Clarence Thomas, while concurring with the majority in incorporating the Second Amendment against the states, declared that he reached this conclusion through the Privileges or Immunities Clause instead of the Due Process Clause. Randy Barnett has referred to Justice Thomas's concurring opinion as a "complete restoration" of the Privileges or Immunities Clause.
In Timbs v Indiana (2019), Justice Thomas and Justice Neil Gorsuch, in separate concurring opinions, declared the Excessive Fines Clause of the Eighth Amendment was incorporated against the states through the Privileges or Immunities Clause instead of the Due Process Clause.
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments. Often considered as one of the most consequential amendments, it addresses citizenship rights and equal protection under the law and was proposed in response to issues related to former slaves following the American Civil War. The amendment was bitterly contested, particularly by the states of the defeated Confederacy, which were forced to ratify it in order to regain representation in Congress. The amendment, particularly its first section, is one of the most litigated parts of the Constitution, forming the basis for landmark Supreme Court decisions such as Brown v Board of Education (1954) regarding racial segregation, Roe v Wade (1973) regarding abortion, Bush v Gore (2000) regarding the 2000 presidential election, and Obergefell v Hodges (2015) regarding same-sex marriage. The amendment limits the actions of all state and local officials, and also those acting on behalf of such officials.
The amendment's first section includes several clauses: the Citizenship Clause, Privileges or Immunities Clause, Due Process Clause, and Equal Protection Clause. The Citizenship Clause provides a broad definition of citizenship, nullifying the Supreme Court's decision in Dred Scott v Sandford (1857), which had held that Americans descended from African slaves could not be citizens of the United States. Since the Slaughter-House Cases (1873), the Privileges or Immunities Clause has been interpreted to do very little.
The Due Process Clause prohibits state and local governments from depriving persons of life, liberty, or property without a fair procedure. The Supreme Court has ruled this clause makes most of the Bill of Rights as applicable to the states as it is to the federal government, as well as to recognize substantive and procedural requirements that state laws must satisfy. The Equal Protection Clause requires each state to provide equal protection under the law to all people, including all non-citizens, within its jurisdiction. This clause has been the basis for many decisions rejecting irrational or unnecessary discrimination against people belonging to various groups.
The second, third, and fourth sections of the amendment are seldom litigated. However, the second section's reference to "rebellion, or other crime" has been invoked as a constitutional ground for felony disenfranchisement. The fourth section was held, in Perry v United States (1935), to prohibit a current Congress from abrogating a contract of debt incurred by a prior Congress. The fifth section gives Congress the power to enforce the amendment's provisions by "appropriate legislation"; however, under City of Boerne v Flores (1997), this power may not be used to contradict a Supreme Court decision interpreting the amendment.
Judicial interpretation
In contrast to the other "Reconstruction Amendments", the Thirteenth Amendment was rarely cited in later case law. As historian Amy Dru Stanley summarizes, "beyond a handful of landmark rulings striking down debt peonage, flagrant involuntary servitude, and some instances of race-based violence and discrimination, the Thirteenth Amendment has never been a potent source of rights claims."
Black slaves and their descendants
United States v Rhodes (1866), one of the first Thirteenth Amendment cases, tested the constitutionality of provisions in the Civil Rights Act of 1866 that granted blacks redress in the federal courts. Kentucky law prohibited blacks from testifying against whites—an arrangement which compromised the ability of Nancy Talbot ("a citizen of the United States of the African race") to reach justice against a white person accused of robbing her. After Talbot attempted to try the case in federal court, the Kentucky Supreme Court ruled this federal option unconstitutional. Noah Swayne (a Supreme Court justice sitting on the Kentucky Circuit Court) overturned the Kentucky decision, holding that without the material enforcement provided by the Civil Rights Act, slavery would not truly be abolished. With In Re Turner (1867), Chief Justice Salmon P Chase ordered freedom for Elizabeth Turner, a former slave in Maryland who became indentured to her former master.
In Blyew v United States, (1872) the Supreme Court heard another Civil Rights Act case relating to federal courts in Kentucky. John Blyew and George Kennard were white men visiting the cabin of a black family, the Fosters. Blyew apparently became angry with sixteen-year-old Richard Foster and hit him twice in the head with an ax. Blyew and Kennard killed Richard's parents, Sallie and Jack Foster, and his blind grandmother, Lucy Armstrong. They severely wounded the Fosters' two young daughters. Kentucky courts would not allow the Foster children to testify against Blyew and Kennard. Federal courts, authorized by the Civil Rights Act, found Blyew and Kennard guilty of murder. The Supreme Court ruled that the Foster children did not have standing in federal courts because only living people could take advantage of the Act. In doing so, the Courts effectively ruled that the Thirteenth Amendment did not permit a federal remedy in murder cases. Swayne and Joseph P Bradley dissented, maintaining that in order to have meaningful effects, the Thirteenth Amendment would have to address systemic racial oppression.
Congressional and executive enforcement.
As its first enforcement legislation, Congress passed the Civil Rights Act of 1866, guaranteeing black Americans citizenship and equal protection of the law, though not the right to vote. The amendment was also used as authorizing several Freedmen's Bureau bills. President Andrew Johnson vetoed these bills, but Congress overrode his vetoes to pass the Civil Rights Act and the Second Freedmen's Bureau Bill.
Proponents of the Act, including Trumbull and Wilson, argued that Section 2 of the Thirteenth Amendment authorized the federal government to legislate civil rights for the States. Others disagreed, maintaining that inequality conditions were distinct from slavery. Seeking more substantial justification, and fearing that future opponents would again seek to overturn the legislation, Congress and the states added additional protections to the Constitution: the Fourteenth Amendment (1868) defining citizenship and mandating equal protection under the law, and the Fifteenth Amendment (1870) banning racial voting restrictions.
The Freedmen's Bureau enforced the amendment locally, providing a degree of support for people subject to the Black Codes. Reciprocally, the Thirteenth Amendment established the Bureau's legal basis to operate in Kentucky. The Civil Rights Act circumvented racism in local jurisdictions by allowing blacks access to the federal courts. The Enforcement Acts of 1870 & 1871 and the Civil Rights Act of 1875, in combating the violence and intimidation of white supremacy, were also part of the effort to end slave conditions for Southern blacks. However, the effect of these laws waned as political will diminished and the federal government lost authority in the South, particularly after the Compromise of 1877 ended Reconstruction in exchange for a Republican presidency.
Ratification by the states.
On February 1, 1865, when the proposed amendment was submitted to the states for ratification, there were 36 states in the U.S., including those that had been in rebellion; at least 27 states had to ratify the amendment for it to come into force. By the end of February, 18 states had ratified the amendment. Among them were the ex-Confederate states of Virginia and Louisiana, where ratifications were submitted by Reconstruction governments. These, along with subsequent ratifications from Arkansas and Tennessee raised the issues of how many seceded states had legally valid legislatures; and if there were fewer legislatures than states, if Article V required ratification by three-fourths of the states or three-fourths of the legally valid state legislatures. President Lincoln in his last speech, on April 11, 1865, called the question about whether the Southern states were in or out of the Union a "pernicious abstraction". He declared they were not "in their proper practical relation with the Union"; whence everyone's object should be to restore that relation. Lincoln was assassinated three days later.
With Congress out of session, the new President, Andrew Johnson, began a period known as "Presidential Reconstruction", in which he personally oversaw the creation of new state governments throughout the South. He oversaw the convening of state political conventions populated by delegates whom he deemed to be loyal. Three leading issues came before the conventions: secession itself, the abolition of slavery, and the Confederate war debt. Alabama, Florida, Georgia, Mississippi, North Carolina, and South Carolina held conventions in 1865, while Texas' convention did not organize until March 1866. Johnson hoped to prevent deliberation over whether to readmit the Southern states by accomplishing full ratification before Congress reconvened in December. He believed he could silence those who wished to deny the Southern states their place in the Union by pointing to how essential their assent had been to the successful ratification of the Thirteenth Amendment.
Direct negotiations between state governments and the Johnson administration ensued. As the summer wore on, administration officials began giving assurances of the measure's limited scope with their demands for ratification. Johnson himself suggested directly to the governors of Mississippi and North Carolina that they could proactively control the allocation of rights to freedmen. Though Johnson obviously expected the freed people to enjoy at least some civil rights, including, as he specified, the right to testify in court, he wanted state lawmakers to know that the power to confer such rights would remain with the states. When South Carolina provisional governor Benjamin Franklin Perry objected to the scope of the amendment's enforcement clause, Secretary of State Seward responded by telegraph that in fact the second clause "is really restraining in its effect, instead of enlarging the powers of Congress". Politicians throughout the South were concerned that Congress might cite the amendment's enforcement powers as a way to authorize black suffrage.
When South Carolina ratified the Amendment in November 1865, it issued its own interpretive declaration that "any attempt by Congress toward legislating upon the political status of former slaves, or their civil relations, would be contrary to the Constitution of the United States." Alabama and Louisiana also declared that their ratification did not imply federal power to legislate on the status of former slaves. During the first week of December, North Carolina and Georgia gave the amendment the final votes needed for it to become part of the Constitution.
The Thirteenth Amendment (Amendment XIII) to the United States Constitution abolished slavery and involuntary servitude, except as punishment for a crime. The amendment was passed by Congress on January 31, 1865, and ratified by the required 27 of the then 36 states on December 6, 1865, and proclaimed on December 18. It was the first of the three Reconstruction Amendments adopted following the American Civil War.
President Abraham Lincoln's Emancipation Proclamation, effective on January 1, 1863, declared that the enslaved in Confederate-controlled areas were free. When they escaped to Union lines or federal forces—including now-former slaves—advanced south, emancipation occurred without any compensation to the former owners. Texas was the last Confederate territory reached by the Union army. On June 19, 1865—Juneteenth—U.S. Army general Gordon Granger arrived in Galveston, Texas, to proclaim the war had ended and so had slavery (in the Confederate states). In the slave-owning areas controlled by Union forces on January 1, 1863, state action was used to abolish slavery. The exceptions were Kentucky and Delaware, where slavery was finally ended by the Thirteenth Amendment in December 1865.
In contrast to the other Reconstruction Amendments, the Thirteenth Amendment has rarely been cited in case law, but has been used to strike down peonage and some race-based discrimination as "badges and incidents of slavery". The Thirteenth Amendment has also been invoked to empower Congress to make laws against modern forms of slavery, such as sex trafficking.
Since 1776, states had divided into states that allowed or states that prohibited slavery. Slavery was implicitly recognized in the original Constitution in provisions such as Article 1, Section 2, Clause 3, commonly known as the Three-Fifths Compromise, which provided that three-fifths of each state's enslaved population (“other persons”) was to be added to its free population for the purposes of apportioning seats in the United States House of Representatives and direct taxes among the states. Article 4, Section 2, provided that slaves held under the laws of one state, who escaped to another state, did not become free, but remained slaves.
Though three million Confederate slaves were in fact eventually freed as a result of Lincoln's Emancipation Proclamation, their post-war status was uncertain. To ensure the abolition was beyond legal challenge, an amendment to the Constitution to that effect was initiated. On April 8, 1864, the Senate passed an amendment to abolish slavery. After one unsuccessful vote and extensive legislative maneuvering by the Lincoln administration, the House followed suit on January 31, 1865. The measure was swiftly ratified by nearly all Northern states, along with a sufficient number of border states (slave states not part of the Confederacy) up to the assassination of President Lincoln. However, the approval came via his successor, President Andrew Johnson, who encouraged the "reconstructed" Southern states of Alabama, North Carolina, and Georgia to agree, which brought the count to 27 states, leading to its adoption before the end of 1865.
Congressional debate.
House of Representatives.
On its first day, the 8th Congress considered the designation amendment. The first formulation of the amendment had the five highest electoral vote earners on the ballot in the House if no one candidate had a majority of the electoral votes. Democratic–Republican John Clopton of Virginia, the largest state in the Union, argued that having five names on the list for a contingency election took the power from the people, so he proposed that there be only two names on the list. On October 20, the House appointed a seventeen-member committee (one Representative from each state) to fine-tune the amendment.
The original proposal starting in the New York State Legislature would have, along with designation, put forward the idea of the district election of electors that Treasury Secretary Gallatin had supported. Shortly after the committee was formed, Federalist Benjamin Huger attempted to add a provision regarding district elections to the proposed amendment, but the committee ignored him.
The committee then submitted an updated version of the designation amendment to the House on October 23 that changed the number of candidates in a contingency election from five to three and allowed the Senate to choose the vice president if there were a tie in that race. Small Federalist states disliked the change from five to three because it made it far less likely that a small-state candidate would make it to a contingency election. Huger and New York Federalist Gaylord Griswold argued that the Constitution was a compromise between large and small states and the method chosen by the Framers is supposed to check the influence of the larger states. Huger even asserted that the Constitution itself was not a union of people, but a union of large and small states in order to justify the original framework for electing the president. Designation, argued Griswold and Huger, would violate the spirit of the Constitution by taking away a check on the power of the large states.
Next up for the Federalists was Seth Hastings of Massachusetts, who submitted the argument that the designation amendment rendered the vice presidency useless and advocated for the elimination of the three-fifths clause. John C Smith asked the inflammatory question of whether the proposed amendment was to help Jefferson get reelected. Speaker Nathaniel Macon called this inappropriate. After Matthew Lyon of Kentucky denounced any reference to the three-fifths clause as mere provocation, the House easily passed the resolution 88 to 39 on October 28.
Many Northern representatives argued for the elimination of the electoral college, and argued for direct election of the President by all U.S. voters.
The Twelfth Amendment to the United States Constitution provides the procedure for electing the president and vice president. It replaced the procedure provided in Article 2, Section 1, Clause 3, by which the Electoral College originally functioned. The amendment was proposed by the Congress on December 9, 1803, and was ratified by the requisite three-fourths of state legislatures on June 15, 1804. The new rules took effect for the 1804 presidential election and have governed all subsequent presidential elections.
Under the original rules of the Constitution, each member of the Electoral College cast two electoral votes, with no distinction made between electoral votes for president and electoral votes for vice president. The presidential candidate receiving the greatest number of votes—provided that number at least equaled a majority of the electors—was elected president, while the presidential candidate receiving the second-most votes was elected vice president. In cases where no individual won a vote from a majority of the electors, as well as in cases where multiple individuals won votes from a majority of electors but tied each other for the most votes, the House of Representatives would hold a contingent election to select the president. In cases where multiple candidates tied for the second-most votes, the Senate would hold a contingent election to select the vice president. The first four presidential elections were conducted under these rules.
The experiences of the 1796 and 1800 presidential elections – showing that the original system caused the election of a President and Vice-President who were political opponents of each other, constantly acting at cross-purposes – spurred legislators to amend the presidential election process, requiring each member of the Electoral College to cast one electoral vote for president and one electoral vote for vice president. Under the new rules, a contingent election is still held by the House of Representatives if no candidate wins a presidential electoral vote from a majority of the electors, but there is no longer any possibility of multiple candidates winning presidential electoral votes from a majority of electors. The Twelfth Amendment also lowered the number of candidates eligible to be selected by the House in a presidential contingent election from five to three, established that the Senate would hold a contingent election for vice president if no candidate won a majority of the vice presidential electoral vote, and provided that no individual constitutionally ineligible to the office of president would be eligible to serve as vice president.
The Eleventh Amendment is an amendment to the United States Constitution which was passed by Congress on March 4, 1794, and ratified by the states on February 7, 1795. The Eleventh Amendment restricts the ability of individuals to bring suit against states in federal court.
The Eleventh Amendment was adopted to overrule the Supreme Court's decision in Chisholm v Georgia (1793). In that case, the Court held that states did not enjoy sovereign immunity from suits made by citizens of other states in federal court. While the Eleventh Amendment established that federal courts do not have the authority to hear cases brought by private parties against a state of which they are not citizens, the Supreme Court has ruled the amendment to apply to all federal suits against states brought by private parties. The Supreme Court has also held that Congress can abrogate state sovereign immunity when using its authority under Section 5 of the Fourteenth Amendment and that the Bankruptcy Clause itself abrogates state sovereign immunity in bankruptcy cases. The Supreme Court has also held that federal courts can enjoin state officials from violating federal law.
Text.
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
Background.
The Eleventh Amendment was the first Constitutional amendment adopted after the Bill of Rights. The amendment was adopted following the Supreme Court's ruling in Chisholm v Georgia, (1793). In Chisholm, the Court ruled that federal courts had the authority to hear cases in law and equity brought by private citizens against states and that states did not enjoy sovereign immunity from suits made by citizens of other states in federal court. Thus, the amendment clarified Article 3, Section 2 of the Constitution, which gives diversity jurisdiction to the judiciary to hear cases "between a state and citizens of another state."
The Tenth Amendment to the United States Constitution, a part of the Bill of Rights, was ratified on December 15, 1791. It expresses the principle of federalism, also known as states' rights, by stating that the federal government has only those powers delegated to it by the Constitution, and that all other powers not forbidden to the states by the Constitution are reserved to each state.
The amendment was proposed by the 1st United States Congress in 1789 during its first term following the adoption of the Constitution. It was considered by many members as a prerequisite before they would ratify the Constitution, and particularly to satisfy demands of Anti-Federalists, who opposed the creation of a stronger federal government.
The purpose of this amendment is to clarify how the federal government's powers should be interpreted and to reaffirm the nature of federalism.
Justices and commentators have publicly wondered whether the Tenth Amendment retains any legal significance.
Text.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Drafting and adoption.
The Tenth Amendment is similar to Article II of the Articles of Confederation:
Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.
After the Constitution was ratified, South Carolina Representative Thomas Tudor Tucker and Massachusetts Representative Elbridge Gerry separately proposed similar amendments limiting the federal government to powers "expressly" delegated, which would have denied implied powers. James Madison opposed the amendments, stating that "it was impossible to confine a Government to the exercise of express powers; there must necessarily be admitted powers by implication, unless the Constitution descended to recount every minutia." When a vote on this version of the amendment with "expressly delegated" was defeated, Connecticut Representative Roger Sherman drafted the Tenth Amendment in its ratified form, omitting "expressly". Sherman's language allowed for an expansive reading of the powers implied by the Necessary and Proper Clause.
When James Madison introduced the Tenth Amendment in Congress, he explained that many states were eager to ratify this amendment, despite critics who deemed the amendment superfluous or unnecessary:
I find, from looking into the amendments proposed by the State conventions, that several are particularly anxious that it should be declared in the Constitution, that the powers not therein delegated should be reserved to the several States. Perhaps words which may define this more precisely than the whole of the instrument now does, may be considered as superfluous. I admit they may be deemed unnecessary: but there can be no harm in making such a declaration, if gentlemen will allow that the fact is as stated. I am sure I understand it, and therefore propose it.
The states ratified the Tenth Amendment, declining to signal that there are unenumerated powers in addition to unenumerated rights. The amendment rendered unambiguous what had previously been at most a mere suggestion or an implication.
The phrase "... or to the people" was handwritten by the clerk of the Senate as the Bill of Rights circulated between the two Houses of Congress.
The Ninth Amendment to the United States Constitution addresses rights, retained by the people, that are not specifically enumerated in the Constitution. It is part of the Bill of Rights. The amendment was introduced during the drafting of the Bill of Rights when some of the American founders became concerned that future generations might argue that, because a certain right was not listed in the Bill of Rights, it did not exist. However, the Ninth Amendment has rarely played any role in U.S. constitutional law, and until the 1980s was often considered "forgotten" or "irrelevant" by many legal academics.
Text.
The amendment, as proposed by Congress in 1789 and later ratified as the Ninth Amendment, reads as follows:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Background before adoption.
When the U.S. Constitution was put to the states for ratification after being signed on September 17, 1787, the Anti-Federalists argued that a Bill of Rights should be added. One of the arguments the Federalists gave against the addition of a Bill of Rights, during the debates about ratification of the Constitution, was that a listing of rights could problematically enlarge the powers specified in Article One, Section 8 of the new Constitution by implication. For example, in Federalist 84, Alexander Hamilton asked, "Why declare that things shall not be done which there is no power to do?" Likewise, James Madison explained to Thomas Jefferson, "I conceive that in a certain degree ... the rights in question are reserved by the manner in which the federal powers are granted" by Article One, Section 8 of the Constitution.
The Anti-Federalists persisted in favor of a Bill of Rights during the ratification debates, but also were against ratification, and consequently several of the state ratification conventions gave their assent with accompanying resolutions proposing amendments to be added. In 1788, the Virginia Ratifying Convention attempted to solve the problem that Hamilton and the Federalists had identified by proposing a constitutional amendment specifying:
That those clauses which declare that Congress shall not exercise certain powers be not interpreted in any manner whatsoever to extend the powers of Congress. But that they may be construed either as making exceptions to the specified powers where this shall be the case, or otherwise as inserted merely for greater caution.
This proposal ultimately led to the Ninth Amendment. In 1789, while introducing to the House of Representatives nineteen draft Amendments, James Madison addressed what would become the Ninth Amendment as follows:
It has been objected also against a Bill of Rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.
Specific aspects.
According to the Supreme Court, the Eighth Amendment forbids some punishments entirely, and forbids some other punishments that are excessive when compared to the crime, or compared to the competence of the perpetrator. This will be discussed in the sections below.
Punishments forbidden regardless of the crime.
In Wilkerson v Utah,(1878), the Supreme Court commented that drawing and quartering, public dissection, burning alive, or disembowelment constituted cruel and unusual punishment. Relying on Eighth Amendment case law Justice William O Douglas stated in his Robinson v California, (1962) concurrence opinion that "historic punishments that were cruel and unusual included "burning at the stake, crucifixion, breaking on the wheel" (In re Kemmler, quartering, the rack and thumbscrew, and, in some circumstances, even solitary confinement." In Thompson v Oklahoma, (1988), the Supreme Court ruled that the death penalty constituted cruel and unusual punishment if the defendant is under age 16 when the crime was committed. Furthermore, in Roper v Simmons, (2005), the Court barred the executing of people who were under age 18 when the crime was committed. In Atkins v Virginia, (2002), the Court declared that executing people who are mentally handicapped constituted cruel and unusual punishment.
Punishments forbidden for certain crimes.
The case of Weems v United States, (1910), marked the first time the Supreme Court exercised judicial review to overturn a criminal sentence as cruel and unusual. The Court overturned a punishment called cadena temporal, which mandated "hard and painful labor", shackling for the duration of incarceration, and permanent civil disabilities. This case is often viewed as establishing a principle of proportionality under the Eighth Amendment. However, others have written that "it is hard to view Weems as announcing a constitutional requirement of proportionality."
In Trop v Dulles, (1958), the Supreme Court held that punishing a natural-born citizen for a crime by revoking his citizenship is unconstitutional, being "more primitive than torture" because it involved the "total destruction of the individual's status in organized society".
In Robinson v California, (1962), the Court decided a California law authorizing a 90-day jail sentence for "be addicted to the use of narcotics" violated the Eighth Amendment, as narcotics addiction "is apparently an illness", and California was attempting to punish people based on the state of this illness, rather than for any specific act. The Court wrote:
To be sure, imprisonment for ninety days is not, in the abstract, a punishment which is either cruel or unusual. But the question cannot be considered in the abstract. Even one day in prison would be a cruel and unusual punishment for the 'crime' of having a common cold.
Cruel and unusual punishments.
General aspects.
The Constitution was amended to prohibit cruel and unusual punishments as part of the United States Bill of Rights as a result of objections raised by people such as Abraham Holmes and Patrick Henry. While Holmes feared the establishment of the Inquisition in the United States, Henry was concerned with the application of torture as a way of extracting confessions. They also feared that the federal government would misuse its powers to create federal crimes as well as to punish those who committed them under the new Constitution and thus use these powers as a way to oppress the people. Abraham Holmes, a member of the Massachusetts Ratifying Convention for the federal constitution, for example noted in a letter from January 30, 1788 that the new Constitution would give the U.S. Congress the power "to ascertain, point out, and determine, what kind of punishments shall be inflicted on persons convicted of crimes." He added with respect those who would belong to the new government under the new Constitution: "They are nowhere restrained from inventing the most cruel and unheard-of punishments, and annexing them to crimes; and there is no constitutional check on them, but that racks and gibbets may be amongst the most mild instruments of their discipline." Relying on the history of the Eighth Amendment and its own case law the Supreme Court stated in Ingraham v Wright (1977) that the Cruel and Unusual Punishments Clause was designed to protect those convicted of crimes. The Supreme Court consequently determined in Ingraham that the Cruel and Unusual Punishments Clause limits the criminal process in three ways: "irst, it limits the kinds of punishment that can be imposed on those convicted of crimes, for example, Estelle v Gamble, supra; Trop v Dulles, supra; second, it proscribes punishment grossly disproportionate to the severity of the crime, for example, Weems v United States, supra; and third, it imposes substantive limits on what can be made criminal and punished as such, for example, Robinson v California, supra."
In Louisiana ex rel. Francis v Resweber, (1947), the Supreme Court assumed arguendo that the Cruel and Unusual Punishments Clause applied to the states through the Due Process Clause of the Fourteenth Amendment. In Robinson v California, (1962), the Court ruled that it did apply to the states through the Fourteenth Amendment. Robinson was the first case in which the Supreme Court applied the Eighth Amendment against the state governments through the Fourteenth Amendment. Before Robinson, the Eighth Amendment had been applied previously only in cases against the federal government.
Justice Potter Stewart's opinion for the Robinson Court held that "infliction of cruel and unusual punishment is in violation of the Eighth and Fourteenth Amendments." The framers of the Fourteenth Amendment, such as John Bingham, had discussed this subject:
Many instances of State injustice and oppression have already occurred in the State legislation of this Union, of flagrant violations of the guaranteed privileges of citizens of the United States, for which the national Government furnished and could furnish by law no remedy whatsoever. Contrary to the express letter of your Constitution, "cruel and unusual punishments" have been inflicted under State laws within this Union upon citizens, not only for crimes committed, but for sacred duty done, for which and against which the Government of the United States had provided no remedy and could provide none.
The Eighth Amendment to the United States Constitution prohibits the federal government from imposing excessive bail, excessive fines, or cruel and unusual punishments. This amendment was adopted on December 15, 1791, along with the rest of the United States Bill of Rights. The Amendment serves as a limitation upon the federal government to impose unduly harsh penalties on criminal defendants before and after a conviction. This limitation applies equally to the price for obtaining pretrial release and the punishment for crime after conviction. The phrases in this amendment originated in the English Bill of Rights of 1689.
The prohibition against cruel and unusual punishments has led courts to hold that the Constitution totally prohibits certain kinds of punishment, such as drawing and quartering. Under the Cruel and Unusual Punishment Clause, the Supreme Court has struck down the application of capital punishment in some instances, but capital punishment is still permitted in some cases where the defendant is convicted of murder.
The Supreme Court has held that the Excessive Fines Clause prohibits fines that are "so grossly excessive as to amount to a deprivation of property without due process of law". The Court struck down a fine as excessive for the first time in United States v Bajakajian (1998). Under the Excessive Bail Clause, the Supreme Court has held that the federal government cannot set bail at "a figure higher than is reasonably calculated" to ensure the defendant's appearance at trial.
The Supreme Court has ruled that the Cruel and Unusual Punishment Clause applies to the states as well as to the federal government, but the Excessive Bail Clause has not been applied to the states. On February 20, 2019, the Supreme Court ruled unanimously in Timbs v Indiana that the Excessive Fines Clause also applies to the states.
Text.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
The Seventh Amendment to the United States Constitution is part of the Bill of Rights. This amendment codifies the right to a jury trial in certain civil cases and inhibits courts from overturning a jury's findings of fact.
An early version of the Seventh Amendment was introduced in Congress in 1789 by James Madison, along with the other amendments, in response to Anti-Federalist objections to the new Constitution. Congress proposed a revised version of the Seventh Amendment to the states on September 28, 1789, and by December 15, 1791, the necessary three-quarters of the states had ratified it. Secretary of State Thomas Jefferson announced the adoption of the amendment on March 1, 1792.
The Seventh Amendment is generally considered one of the more straightforward amendments of the Bill of Rights. While the Seventh Amendment's provision for jury trials in civil cases has never been incorporated (applied to the states), almost every state has a provision for jury trials in civil cases in its constitution. The prohibition of overturning a jury's findings of fact applies to federal cases, state cases involving federal law, and to review of state cases by federal courts. United States v Wonson (1812) established the historical test, which interpreted the amendment as relying on English common law to determine whether a jury trial was necessary in a civil suit. The amendment thus does not guarantee trial by jury in cases under maritime law, in lawsuits against the government itself, and for many parts of patent claims. In all other cases, the jury can be waived by consent of the parties.
The amendment additionally guarantees a minimum of six members for a jury in a civil trial. The amendment's twenty dollar threshold has not been the subject of much scholarly or judicial writing and still remains applicable despite the inflation that has occurred since the late 18th century ($20 in 1800 is equivalent to $300 in 2020). This estimate is open to interpretation because it uses the Consumer Price Index which was not established until 1919. A wider historical scope helps to reveal that $20 USD in 1791 is roughly $440 in 2021.
The Sixth Amendment to the United States Constitution sets forth rights related to criminal prosecutions. It was ratified in 1791 as part of the United States Bill of Rights. The Supreme Court has applied most of the protections of this amendment to the states through the Due Process Clause of the Fourteenth Amendment.
The Sixth Amendment grants criminal defendants the right to a speedy and public trial by an impartial jury consisting of jurors from the state and district in which the crime was alleged to have been committed. Under the impartial jury requirement, jurors must be unbiased, and the jury must consist of a representative cross-section of the community. The right to a jury applies only to offenses in which the penalty is imprisonment for longer than six months. In Barker v Wingo, the Supreme Court articulated a balancing test to determine whether a defendant's right to a speedy trial had been violated. It has additionally held that the requirement of a public trial is not absolute, and that both the government and the defendant can in some cases request a closed trial.
The Sixth Amendment requires that criminal defendants be given notice of the nature and cause of accusations against them. The amendment's Confrontation Clause gives criminal defendants the right to confront and cross-examine witnesses, while the Compulsory Process Clause gives criminal defendants the right to call their own witnesses and, in some cases, compel witnesses to testify. The Assistance of Counsel Clause grants criminal defendants the right to be assisted by counsel. In Gideon v Wainwright and subsequent cases, the Supreme Court held that a public defender must be provided to criminal defendants unable to afford an attorney in all trials where the defendant faces the possibility of imprisonment.
Text.
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.
In some cases, individuals may be legally required to file reports that call for information that may be used against them in criminal cases. In United States v Sullivan, the United States Supreme Court ruled that a taxpayer could not invoke the Fifth Amendment's protections as the basis for refusing to file a required federal income tax return. The Court stated: "If the form of return provided called for answers that the defendant was protected from making he could have raised the objection in the return, but could not on that account refuse to make any return at all. We are not called on to decide what, if anything, he might have withheld."
In Garner v United States, the defendant was convicted of crimes involving a conspiracy to "fix" sporting contests and to transmit illegal bets. During the trial the prosecutor introduced, as evidence, the taxpayer's federal income tax returns for various years. In one return the taxpayer had shown his occupation to be "professional gambler." In various returns the taxpayer had reported income from "gambling" or "wagering." The prosecution used this to help contradict the taxpayer's argument that his involvement was innocent. The taxpayer tried unsuccessfully to keep the prosecutor from introducing the tax returns as evidence, arguing that since the taxpayer was legally required to report the illegal income on the returns, he was being compelled to be a witness against himself. The Supreme Court agreed that he was legally required to report the illegal income on the returns, but ruled that the right against self-incrimination still did not apply. The Court stated that "if a witness under compulsion to testify makes disclosures instead of claiming the right, the Government has not 'compelled' him to incriminate himself."
Sullivan and Garner are viewed as standing, in tandem, for the proposition that on a required federal income tax return a taxpayer would probably have to report the amount of the illegal income, but might validly claim the right by labeling the item "Fifth Amendment" (instead of "illegal gambling income," "illegal drug sales," etcetera) The United States Court of Appeals for the Eleventh Circuit has stated: "Although the source of income might be privileged, the amount must be reported." The U.S. Court of Appeals for the Fifth Circuit has stated: "... the amount of a taxpayer's income is not privileged even though the source of income may be, and Fifth Amendment rights can be exercised in compliance with the tax laws 'by simply listing his alleged ill-gotten gains in the space provided for "miscellaneous" income on his tax form'." In another case, the Court of Appeals for the Fifth Circuit stated: "While the source of some of Johnson's income may have been privileged, assuming that the jury believed his uncorroborated testimony that he had illegal dealings in gold in 1970 and 1971, the amount of his income was not privileged and he was required to pay taxes on it." In 1979, the U.S. Court of Appeals for the Tenth Circuit stated: "A careful reading of Sullivan and Garner, therefore, is that the self-incrimination privilege can be employed to protect the taxpayer from revealing the information as to an illegal source of income, but does not protect him from disclosing the amount of his income."
Self-incrimination.
The Fifth Amendment protects individuals from being forced to incriminate themselves. Incriminating oneself is defined as exposing oneself (or another person) to "an accusation or charge of crime," or as involving oneself (or another person) "in a criminal prosecution or the danger thereof." The privilege against compelled self-incrimination is defined as "the constitutional right of a person to refuse to answer questions or otherwise give testimony against himself". To "plead the Fifth" is to refuse to answer any question because "the implications of the question, in the setting in which it is asked" lead a claimant to possess a "reasonable cause to apprehend danger from a direct answer", believing that "a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result."
Historically, the legal protection against compelled self-incrimination was directly related to the question of torture for extracting information and confessions.
The legal shift away from widespread use of torture and forced confession dates to turmoil of the late 16th and early 17th century in England.
The Supreme Court of the United States has held that "a witness may have a reasonable fear of prosecution and yet be innocent of any wrongdoing. The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances."
However, Professor James Duane of the Regent University School of Law argues that the Supreme Court, in a 5 to 4 decision in Salinas v Texas, significantly weakened the privilege, saying "our choice to use the Fifth Amendment privilege can be used against you at trial depending exactly how and where you do it."
In the Salinas case, justices Alito, Roberts, and Kennedy held that "the Fifth Amendment's privilege against self-incrimination does not extend to defendants who simply decide to remain mute during questioning. Long-standing judicial precedent has held that any witness who desires protection against self-incrimination must explicitly claim that protection."
Justice Thomas, siding with Alito, Roberts and Kennedy, in a separate opinion, held that, "Salinas' Fifth Amendment privilege would not have been applicable even if invoked because the prosecutor's testimony regarding his silence did not compel Salinas to give self-incriminating testimony." Justice Antonin Scalia joined Thomas' opinion.
The Fifth Amendment to the United States Constitution addresses criminal procedure and other aspects of the Constitution. It was ratified, along with nine other articles, in 1791 as part of the Bill of Rights. The Fifth Amendment applies to every level of the government, including the federal, state, and local levels, in regard to a US citizen or resident of the US. The Supreme Court furthered the protections of this amendment through the Due Process Clause of the Fourteenth Amendment.
One provision of the Fifth Amendment requires that felonies be tried only upon indictment by a grand jury. Another provision, the Double Jeopardy Clause, provides the right of defendants to be tried only once in federal court for the same offense. The self-incrimination clause provides various protections against self-incrimination, including the right of an individual to not serve as a witness in a criminal case in which they are the defendant. "Pleading the Fifth" is a colloquial term often used to invoke the self-incrimination clause when witnesses decline to answer questions where the answers might incriminate them. In the 1966 case of Miranda v Arizona, the Supreme Court held that the self-incrimination clause requires the police to issue a Miranda warning to criminal suspects interrogated while under police custody. The Fifth Amendment also contains the Takings Clause, which allows the federal government to take private property for public use if the government provides "just compensation."
Like the Fourteenth Amendment, the Fifth Amendment includes a due process clause stating that no person shall "be deprived of life, liberty, or property, without due process of law." The Fifth Amendment's due process clause applies to the federal government, while the Fourteenth Amendment's due process clause applies to state governments. The Supreme Court has interpreted the Fifth Amendment's Due Process Clause as providing two main protections: procedural due process, which requires government officials to follow fair procedures before depriving a person of life, liberty, or property, and substantive due process, which protects certain fundamental rights from government interference. The Supreme Court has also held that the Due Process Clause contains a prohibition against vague laws and an implied equal protection requirement similar to the Fourteenth Amendment's Equal Protection Clause.
Text.
The amendment as proposed by Congress in 1789:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Exclusionary rule.
One way courts enforce the Fourth Amendment is through the use of the exclusionary rule. The rule provides that evidence obtained through a violation of the Fourth Amendment is generally not admissible by the prosecution during the defendant's criminal trial. The Court stated in Elkins v United States (1960) that the rule's function "is to deter—to compel respect for the constitutional guarantee in the only effectively available way—by removing the incentive to disregard it."
The Court adopted the exclusionary rule in Weeks v United States (1914), prior to which all evidence, no matter how seized, could be admitted in court. In Silverthorne Lumber Company v United States (1920) and Nardone v United States (1939), the Court ruled that leads or other evidence resulting from illegally obtained evidence are also inadmissible in trials. Justice Felix Frankfurter described this secondary evidence in the Nardone decision as the "fruit of the poisonous tree". The Supreme Court rejected incorporating the exclusionary rule by way of the Fourteenth Amendment in Wolf v Colorado (1949), but Wolf was explicitly overruled in Mapp v Ohio (1961), making the Fourth Amendment (including the exclusionary rule) applicable in state proceedings.
The exclusionary rule and its effectiveness have often been controversial, particularly since its 1961 application to state proceedings. Critics charge that the rule hampers police investigation and can result in freeing guilty parties convicted on reliable evidence; other critics say the rule has not been successful in deterring illegal police searches. Proponents argue that the number of criminal convictions overturned under the rule has been minimal and that no other effective mechanism exists to enforce the Fourth Amendment. In 1982, California passed a "Victim's Bill of Rights" containing a provision to repeal the exclusionary rule; though the bill could not affect federally mandated rights under the Fourth Amendment, it blocked the state courts from expanding these protections further.
Limitations.
Since 1974, the Supreme Court has repeatedly limited the exclusionary rule. In United States v Calandra (1974), the Court ruled that grand juries may use illegally obtained evidence when questioning witnesses, because "the damage to that institution from the unprecedented extension of the exclusionary rule outweighs the benefit of any possible incremental deterrent effect." Explaining the purpose of the rule, the Court said the rule "is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved."
Warrant
Under the Fourth Amendment, law enforcement must receive written permission from a court of law, or otherwise qualified magistrate, to lawfully search and seize evidence while investigating criminal activity. A court grants permission by issuing a writ known as a warrant. A search or seizure is generally unreasonable and unconstitutional if conducted without a valid warrant and the police must obtain a warrant whenever practicable. Searches and seizures without a warrant are not considered unreasonable if one of the specifically established and well-delineated exceptions to the warrant requirement applies. These exceptions apply "nly in those exceptional circumstances in which special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impracticable."
In these situations where the warrant requirement doesn't apply a search or seizure nonetheless must be justified by some individualized suspicion of wrongdoing. However, the U.S. Supreme Court carved out an exception to the requirement of individualized suspicion. It ruled that, "In limited circumstances, where the privacy interests implicated by the search are minimal and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion" a search would still be reasonable.
Probable cause
The standards of probable cause differ for an arrest and a search. The government has probable cause to make an arrest when "the facts and circumstances within their knowledge and of which they had reasonably trustworthy information" would lead a prudent person to believe the arrested person had committed or was committing a crime. Probable cause to arrest must exist before the arrest is made. Evidence obtained after the arrest may not apply retroactively to justify the arrest.
When police conduct a search, the amendment requires that the warrant establish probable cause to believe the search will uncover criminal activity or contraband. They must have legally sufficient reasons to believe a search is necessary. In Carroll v United States (1925), the Supreme Court stated that probable cause to search is a flexible, common-sense standard. To that end, the Court ruled in Dumbra v United States (1925) that the term probable cause means "less than evidence that would justify condemnation," reiterating Carroll's assertion that it merely requires that the facts available to the officer would "warrant a man of reasonable caution" in the belief that specific items may be contraband or stolen property or useful as evidence of a crime. It does not demand any showing that such a belief be correct or more likely true than false. A "practical, non-technical" probability that incriminating evidence is involved is all that is required. In Illinois v Gates (1983), the Court ruled that the reliability of an informant is to be determined based on the "totality of the circumstances."
Applicability
The Fourth Amendment, and the personal rights which it secures, have a long history. The Bill of Rights originally restricted only the federal government, and went through a long initial phase of "judicial dormancy;" in the words of historian Gordon S Wood, "After ratification, most Americans promptly forgot about the first ten amendments to the Constitution." Federal jurisdiction regarding criminal law was narrow until the late 19th century when the Interstate Commerce Act and Sherman Antitrust Act were passed. As federal criminal jurisdiction expanded to include other areas such as narcotics, more questions about the Fourth Amendment came to the U.S. Supreme Court. The Supreme Court responded to these questions by stating on the one hand that the government powers to search and seizure are limited by the Fourth Amendment so that arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals are prevented and by outlining on the other hand the fundamental purpose of the amendment as guaranteeing "the privacy, dignity and security of persons against certain arbitrary and invasive acts by officers of the Government, without regard to whether the government actor is investigating crime or performing another function". To protect personal privacy and dignity against unwarranted intrusion by the State is the overriding function of the Fourth Amendment according to the Court in Schmerber v California (1966), because "he security of one's privacy against arbitrary intrusion by the police" is "at the core of the Fourth Amendment" and "basic to a free society." Pointing to historic precedents like Entick v Carrington (1765) and Boyd v United States (1886), the Supreme Court held in Silverman v United States (1961) that the Fourth Amendments core is the right to retreat into his own home and there be free from unreasonable governmental intrusion. With a view to Camara v Municipal Court (1967) the Supreme Court observed in Torres v Madrid (2021) that the focus of the Fourth Amendment is the privacy and security of individuals, not the particular manner of arbitrary invasion by governmental officials. In Mapp v Ohio (1961), the Supreme Court ruled that the Fourth Amendment applies to the states by way of the Due Process Clause of the Fourteenth Amendment.
The effect of the Fourth Amendment is to put the courts of the United States and Federal officials, in the exercise of their power and authority, under limitations and restraints as to the exercise of such power and authority, and to forever secure the people, their persons, houses, papers, and effects, against all unreasonable searches and seizures under the guise of law. This protection reaches all alike, whether accused of crime or not, and the duty of giving to it force and effect is obligatory upon all intrusted under our Federal system with the enforcement of the laws. The tendency of those who execute the criminal laws of the country to obtain conviction by means of unlawful seizures and enforced confessions, the latter often obtained after subjecting accused persons to unwarranted practices destructive of rights secured by the Federal Constitution, should find no sanction in the judgments of the courts, which are charged at all times with the support of the Constitution, and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights.
--Justice William R Day in the Opinion of the Court in Weeks v United States (1914).
The Third Amendment to the United States Constitution places restrictions on the quartering of soldiers in private homes without the owner's consent, forbidding the practice in peacetime. The amendment is a response to the Quartering Acts passed by the British parliament during the buildup to the American Revolutionary War, which had allowed the British Army to lodge soldiers in private residences.
The Third Amendment was introduced in Congress in 1789 by James Madison as a part of the United States Bill of Rights, in response to Anti-Federalist objections to the new Constitution. Congress proposed the amendment to the states on September 28, 1789, and by December 15, 1791, the necessary three-quarters of the states had ratified it. Secretary of State Thomas Jefferson announced the adoption of the amendment on March 1, 1792.
The amendment is one of the least controversial of the Constitution and is rarely litigated, with criminal justice writer Radley Balko calling it the "runt piglet" of the U.S. Constitution. To date, it has never been the primary basis of a Supreme Court decision, though it was the basis of the Court of Appeals for the Second Circuit case Engblom v Carey in 1982.
Text.
The complete text of the amendment is:
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law..
Background.
In 1765, the British parliament enacted the first of the Quartering Acts, requiring the American colonies to pay the costs of British soldiers serving in the colonies, and requiring that if the local barracks provided insufficient space, that the colonists lodge the troops in alehouses, inns, and livery stables. After the Boston Tea Party, the Quartering Act of 1774 was enacted. As one of the Intolerable Acts that pushed the colonies toward revolution, it authorized British troops to be housed wherever necessary, including in private homes. The quartering of troops was cited as one of the colonists' grievances in the United States Declaration of Independence.
The Third Amendment to the United States Constitution places restrictions on the quartering of soldiers in private homes without the owner's consent, forbidding the practice in peacetime. The amendment is a response to the Quartering Acts passed by the British parliament during the buildup to the American Revolutionary War, which had allowed the British Army to lodge soldiers in private residences.
The Third Amendment was introduced in Congress in 1789 by James Madison as a part of the United States Bill of Rights, in response to Anti-Federalist objections to the new Constitution. Congress proposed the amendment to the states on September 28, 1789, and by December 15, 1791, the necessary three-quarters of the states had ratified it. Secretary of State Thomas Jefferson announced the adoption of the amendment on March 1, 1792.
The amendment is one of the least controversial of the Constitution and is rarely litigated, with criminal justice writer Radley Balko calling it the "runt piglet" of the U.S. Constitution. To date, it has never been the primary basis of a Supreme Court decision, though it was the basis of the Court of Appeals for the Second Circuit case Engblom v Carey in 1982.
Text.
The complete text of the amendment is:
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law..
Background.
In 1765, the British parliament enacted the first of the Quartering Acts, requiring the American colonies to pay the costs of British soldiers serving in the colonies, and requiring that if the local barracks provided insufficient space, that the colonists lodge the troops in alehouses, inns, and livery stables. After the Boston Tea Party, the Quartering Act of 1774 was enacted. As one of the Intolerable Acts that pushed the colonies toward revolution, it authorized British troops to be housed wherever necessary, including in private homes. The quartering of troops was cited as one of the colonists' grievances in the United States Declaration of Independence.
National Federation of Independent Business v. Department of Labor, Occupational Safety and Health Administration, is a Supreme Court of the United States case before the Court on an application for a stay of the Occupational Safety and Health Administration's COVID-19 vaccination or test mandate. On January 13, 2022, the Supreme Court ordered a stay of the mandate.
Background.
In September 2021, President of the United States Joe Biden announced his administration would be promulgating a vaccination or test mandate for all private companies with 100 or more employees. The Occupational Safety and Health Administration announced its Emergency Temporary Standard (ETS) on November 5, 2021. On November 6, 2021, the United States Court of Appeals for the Fifth Circuit issued a nationwide stay of the ETS's implementation; it issued an opinion explaining its reasoning on November 12, 2021.
Challenges to OSHA regulations are randomly assigned to one of the twelve United States courts of appeals with geographic jurisdiction. The challenges to the COVID-19 ETS were all transferred to the United States Court of Appeals for the Sixth Circuit on November 16, 2021. The petitioners sought initial hearing en banc for consideration of the challenges. On December 15, 2021, the court denied the petition by an 8 to 8 vote, over the dissents of Chief Judge Jeffrey Sutton and Judge John K Bush, joined by six additional judges.
On December 17, 2021, a panel of the court dissolved the Fifth Circuit's stay of the ETS by a 2 to 1 vote. Judge Joan Larsen dissented.
Supreme Court.
Numerous challengers filed emergency applications at the Supreme Court of the United States in the days after the Fifth Circuit's stay was dissolved. The federal government responded to the applications on December 30, 2021. In an unusual proceeding for emergency applications, oral argument was held on January 7, 2022. The National Federation of Independent Business, representing many private companies, and Ohio, representing more than 20 states, argued for the petitioners. The Supreme Court granted a stay of the ETS in a per curiam order on January 13, 2022. The order stated that the OSHA mandate exceeded the authority that it was given by Congress; OSHA could only regulate occupational safety, and the vaccine mandate was seen as "broad public health measures." The order stated that "Permitting OSHA to regulate the hazards of daily life — simply because most Americans have jobs and face those same risks while on the clock — would significantly expand OSHA’s regulatory authority without clear congressional authorization." In a concurring statement written by Justice Neil Gorsuch and joined by Justices Samuel Alito and Clarence Thomas, Gorsuch wrote that it should be up to states and Congress to decide best how to respond to a pandemic like COVID.
A joint dissent to the order was written by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan. They stated that employees have "little control, and therefore little capacity to mitigate risk", and that the ruling "stymies the Federal Government’s ability to counter the unparalleled threat that COVID-19 poses to our Nation’s workers." The three countered Gorsuch's statement and stated that OSHA was the actor with the best understanding of the workplace in light of threats like COVID, and not the court system.
McDonald v City of Chicago.
On June 28, 2010, the Court in McDonald v City of Chicago, (2010), held that the Second Amendment was incorporated, saying that "t is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty." This means that the Court ruled that the Second Amendment limits state and local governments to the same extent that it limits the federal government. It also remanded a case regarding a Chicago handgun prohibition. Four of the five justices in the majority voted to do so by way of the Due Process Clause of the Fourteenth Amendment, while the fifth justice, Clarence Thomas, voted to do so through the amendment's Privileges or Immunities Clause.
Justice Thomas, in his concurring opinion, noted that the Privileges or Immunities Clause refers to "citizens" whereas the Due Process Clause refers more broadly to any "person", and therefore Thomas reserved the issue of non-citizens for later decision. After McDonald, many questions about the Second Amendment remain unsettled, such as whether non-citizens are protected through the Equal Protection Clause.
In People v Aguilar (2013), the Illinois Supreme Court summed up the central Second Amendment findings in McDonald:
Two years later, in McDonald v City of Chicago, (2010), the Supreme Court held that the second amendment right recognized in Heller is applicable to the states through the due process clause of the fourteenth amendment. In so holding, the Court reiterated that "the Second Amendment protects the right to keep and bear arms for the purpose of self-defense"; that "individual self-defense is 'the central component' of the Second Amendment right" (emphasis in original)(quoting Heller); and that "self-defense is a basic right, recognized by many legal systems from ancient times to the present day".
Caetano v Massachusetts.
On March 21, 2016, in a per curiam decision the Court vacated a Massachusetts Supreme Judicial Court decision upholding the conviction of a woman who carried a stun gun for self-defense. The Court reiterated that the Heller and McDonald decisions saying that "the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding", that "the Second Amendment right is fully applicable to the States", and that the protection is not restricted to "only those weapons useful in warfare". The term "bearable arms" was defined in District of Columbia v Heller, (2008) and includes any "eapo of offense" or "thing that a man wears for his defense, or takes into his hands", that is "carrying. ... for the purpose of offensive or defensive action".
New York State Rifle & Pistol Association, Inc. v City of New York, New York.
The Court heard New York State Rifle & Pistol Association Inc. v City of New York, New York on December 2, 2019, to decide whether a New York City ordinance that prevents the transport of guns, even if properly unloaded and locked in containers, from within city limits to outside of the city limits is unconstitutional. The New York Rifle & Pistol Association challenged the ordinance on the basis of the Second Amendment, the Dormant Commerce Clause, and the right to travel. However, as the city had changed its rule to allow transport while the case was under consideration by the Court, the Court ruled the case moot in April 2020, though it remanded the case so the lower courts could review the new rules under the petitioner's new claims.
Supreme Court cases
In the century following the ratification of the Bill of Rights, the intended meaning and application of the Second Amendment drew less interest than it does in modern times. The vast majority of regulation was done by states, and the first case law on weapons regulation dealt with state interpretations of the Second Amendment. A notable exception to this general rule was Houston v Moore, (1820), where the U.S. Supreme Court mentioned the Second Amendment in an aside. In the Dred Scott decision (1857), the opinion of the court stated that if African Americans were considered U.S. citizens, "It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right ... to keep and carry arms wherever they went."
State and federal courts historically have used two models to interpret the Second Amendment: the "individual rights" model, which holds that individuals hold the right to bear arms, and the "collective rights" model, which holds that the right is dependent on militia membership. The "collective rights" model has been rejected by the Supreme Court, in favor of the individual rights model, beginning with its District of Columbia v Heller (2008) decision.
The Supreme Court's primary Second Amendment cases include United States v Miller, (1939); District of Columbia v Heller (2008); and McDonald v Chicago (2010).
Heller and McDonald supported the individual rights model, under which the Second Amendment protects the right to keep and bear arms much as the First Amendment protects the right to free speech. Under this model, the militia is composed of members who supply their own arms and ammunition. This is generally recognized as the method by which militias have historically been armed, as the Supreme Court in Miller said:
The significance attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. 'A body of citizens enrolled for military discipline.' And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.
Of the collective rights model that holds that the right to arms is based on militia membership, the Supreme Court in Heller said:
A purposive qualifying phrase that contradicts the word or phrase it modifies is unknown this side of the looking glass (except, apparently, in some courses on Linguistics). If "bear arms" means, as we think, simply the carrying of arms, a modifier can limit the purpose of the carriage ("for the purpose of self-defense" or "to make war against the King"). But if "bear arms" means, as the petitioners and the dissent think, the carrying of arms only for military purposes, one simply cannot add "for the purpose of killing game". The right "to carry arms in the militia for the purpose of killing game" is worthy of the mad hatter.
Commentary since late 20th century.
Until the late 20th century, there was little scholarly commentary of the Second Amendment. In the latter half of the 20th century, there was considerable debate over whether the Second Amendment protected an individual right or a collective right. The debate centered on whether the prefatory clause ("A well regulated militia being necessary to the security of a free State") declared the amendment's only purpose or merely announced a purpose to introduce the operative clause ("the right of the People to keep and bear arms shall not be infringed"). Scholars advanced three competing theoretical models for how the prefatory clause should be interpreted.
The first, known as the "states' rights" or "collective right" model, held that the Second Amendment does not apply to individuals; rather, it recognizes the right of each state to arm its militia. Under this approach, citizens "have no right to keep or bear arms, but the states have a collective right to have the National Guard". Advocates of collective rights models argued that the Second Amendment was written to prevent the federal government from disarming state militias, rather than to secure an individual right to possess firearms. Prior to 2001, every circuit court decision that interpreted the Second Amendment endorsed the "collective right" model. However, beginning with the Fifth Circuit's opinion United States v Emerson in 2001, some circuit courts recognized that the Second Amendment protects an individual right to bear arms.
The second, known as the "sophisticated collective right model", held that the Second Amendment recognizes some limited individual right. However, this individual right could be exercised only by actively participating members of a functioning, organized state militia. Some scholars have argued that the "sophisticated collective rights model" is, in fact, the functional equivalent of the "collective rights model". Other commentators have observed that prior to Emerson, five circuit courts specifically endorsed the "sophisticated collective right model".
The third, known as the "standard model", held that the Second Amendment recognized the personal right of individuals to keep and bear arms. Supporters of this model argued that "although the first clause may describe a general purpose for the amendment, the second clause is controlling and therefore the amendment confers an individual right 'of the people' to keep and bear arms". Additionally, scholars who favored this model argued the "absence of founding-era militias mentioned in the Amendment's preamble does not render it a 'dead letter' because the preamble is a 'philosophical declaration' safeguarding militias and is but one of multiple 'civic purposes' for which the Amendment was enacted".
Meaning of "well regulated militia"
An early use of the phrase "well-regulated militia" may be found in Andrew Fletcher's 1698 A Discourse of Government with Relation to Militias, as well as the phrase "ordinary and ill-regulated militia". Fletcher meant "regular" in the sense of regular military, and advocated the universal conscription and regular training of men of fighting age. Jefferson thought well of Fletcher, commenting that "the political principles of that patriot were worthy the purest periods of the British constitution. They are those which were in vigor."
The term "regulated" means "disciplined" or "trained". In Heller, the U.S. Supreme Court stated that "the adjective 'well-regulated' implies nothing more than the imposition of proper discipline and training."
Militia following ratification.
During the first two decades following the ratification of the Second Amendment, public opposition to standing armies, among Anti-Federalists and Federalists alike, persisted and manifested itself locally as a general reluctance to create a professional armed police force, instead relying on county sheriffs, constables and night watchmen to enforce local ordinances. Though sometimes compensated, often these positions were unpaid – held as a matter of civic duty. In these early decades, law enforcement officers were rarely armed with firearms, using billy clubs as their sole defensive weapons. In serious emergencies, a posse comitatus, militia company, or group of vigilantes assumed law enforcement duties; these individuals were more likely than the local sheriff to be armed with firearms.
On May 8, 1792, Congress passed "n act more effectually to provide for the National Defense, by establishing an Uniform Militia throughout the United States" requiring:
each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is hereinafter excepted) shall severally and respectively be enrolled in the militia ... every citizen so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball: or with a good rifle, knapsack, shot-pouch and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear, so armed, accoutred and provided, when called out to exercise, or into service, except, that when called out on company days to exercise only, he may appear without a knapsack.
The act also gave specific instructions to domestic weapon manufacturers "that from and after five years from the passing of this act, muskets for arming the militia as herein required, shall be of bores sufficient for balls of the eighteenth part of a pound." In practice, private acquisition and maintenance of rifles and muskets meeting specifications and readily available for militia duty proved problematic; estimates of compliance ranged from 10 to 65 percent. Compliance with the enrollment provisions was also poor. In addition to the exemptions granted by the law for custom-house officers and their clerks, post-officers and stage drivers employed in the care and conveyance of U.S. mail, ferrymen, export inspectors, pilots, merchant mariners and those deployed at sea in active service; state legislatures granted numerous exemptions under Section 2 of the Act, including exemptions for: clergy, conscientious objectors, teachers, students, and jurors. Though a number of able-bodied white men remained available for service, many simply did not show up for militia duty. Penalties for failure to appear were enforced sporadically and selectively. None is mentioned in the legislation.
Drafting and adoption of the Constitution.
In March 1785, delegates from Virginia and Maryland assembled at the Mount Vernon Conference to fashion a remedy to the inefficiencies of the Articles of Confederation. The following year, at a meeting in Annapolis, Maryland, 12 delegates from five states (New Jersey, New York, Pennsylvania, Delaware, and Virginia) met and drew up a list of problems with the current government model. At its conclusion, the delegates scheduled a follow-up meeting in Philadelphia, Pennsylvania for May 1787 to present solutions to these problems, such as the absence of:
interstate arbitration processes to handle quarrels between states;
sufficiently trained and armed intrastate security forces to suppress insurrection;
a national militia to repel foreign invaders.
It quickly became apparent that the solution to all three of these problems required shifting control of the states' militias to the federal Congress and giving it the power to raise a standing army. Article 1, Section 8 of the Constitution codified these changes by allowing the Congress to provide for the common defense and general welfare of the United States by doing the following:
raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;
provide and maintain a navy;
make rules for the government and regulation of the land and naval forces;
provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;
provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress.
Some representatives mistrusted proposals to enlarge federal powers, because they were concerned about the inherent risks of centralizing power. Federalists, including James Madison, initially argued that a bill of rights was unnecessary, sufficiently confident that the federal government could never raise a standing army powerful enough to overcome a militia. Federalist Noah Webster argued that an armed populace would have no trouble resisting the potential threat to liberty of a standing army. Anti-federalists, on the other hand, advocated amending the Constitution with clearly defined and enumerated rights providing more explicit constraints on the new government. Many Anti-federalists feared the new federal government would choose to disarm state militias. Federalists countered that in listing only certain rights, unlisted rights might lose protection. The Federalists realized there was insufficient support to ratify the Constitution without a bill of rights and so they promised to support amending the Constitution to add a bill of rights following the Constitution's adoption. This compromise persuaded enough Anti-federalists to vote for the Constitution, allowing for ratification. The Constitution was declared ratified on June 21, 1788, when nine of the original thirteen states had ratified it. The remaining four states later followed suit, although the last two states, North Carolina and Rhode Island, ratified only after Congress had passed the Bill of Rights and sent it to the states for ratification. James Madison drafted what ultimately became the Bill of Rights, which was proposed by the first Congress on June 8, 1789, and was adopted on December 15, 1791.
Preserving slave patrols.
In the slave states, the militia was available for military operations, but its biggest function was to police the slaves.
Settlers in Colonial America viewed the right to arms and/or the right to bear arms and/or state militias as important for one or more of these purposes (in no particular order):
enabling the people to organize a militia system
participating in law enforcement
safeguarding against tyrannical governments
repelling invasion
suppressing insurrection, allegedly including slave revolts, though some scholars say the claim of a specific intent to protect the ability to put down slave revolts is not supported by the historical record
facilitating a natural right of self-defense
Which of these considerations were thought of as most important and ultimately found expression in the Second Amendment is disputed. Some of these purposes were explicitly mentioned in early state constitutions; for example, the Pennsylvania Constitution of 1776 asserted that, "the people have a right to bear arms for the defense of themselves and the state."
During the 1760s pre-revolutionary period, the established colonial militia was composed of colonists, including many who were loyal to British rule. As defiance and opposition to British rule developed, a distrust of these Loyalists in the militia became widespread among the colonists known as Patriots, who favored independence from British rule. As a result, some Patriots created their own militias that excluded the Loyalists and then sought to stock independent armories for their militias. In response to this arms build-up, the British parliament established an embargo of firearms, parts and ammunition against the American colonies. King George III also began disarming individuals who were in the most rebellious areas in the 1760s and 1770s.
British and Loyalist efforts to disarm the colonial Patriot militia armories in the early phases of the American Revolution resulted in the Patriot colonists protesting by citing the Declaration of Rights, Blackstone's summary of the Declaration of Rights, their own militia laws and common law rights to self-defense. While British policy in the early phases of the Revolution clearly aimed to prevent coordinated action by the Patriot militia, some have argued that there is no evidence that the British sought to restrict the traditional common law right of self-defense. Patrick J. Charles disputes these claims citing similar disarming by the patriots and challenging those scholars' interpretation of Blackstone.
The right of the colonists to arms and rebellion against oppression was asserted, for example, in a pre-revolutionary newspaper editorial in 1769 objecting to the Crown suppression of colonial opposition to the Townshend Acts:
Instances of the licentious and outrageous behavior of the military conservators of the peace still multiply upon us, some of which are of such nature, and have been carried to such lengths, as must serve fully to evince that a late vote of this town, calling upon its inhabitants to provide themselves with arms for their defense, was a measure as prudent as it was legal: such violences are always to be apprehended from military troops, when quartered in the body of a populous city; but more especially so, when they are led to believe that they are become necessary to awe a spirit of rebellion, injuriously said to be existing therein. It is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defense; and as Mr. Blackstone observes, it is to be made use of when the sanctions of society and law are found insufficient to restrain the violence of oppression.
The Second Amendment to the United States Constitution protects the right to keep and bear arms. It was ratified on December 15, 1791, along with nine other articles of the Bill of Rights. In District of Columbia v Heller (2008), the Supreme Court affirmed for the first time that the right belongs to individuals, for self-defense in the home, while also including, as dicta, that the right is not unlimited and does not preclude the existence of certain long-standing prohibitions such as those forbidding "the possession of firearms by felons and the mentally ill" or restrictions on "the carrying of dangerous and unusual weapons". In McDonald v City of Chicago (2010) the Supreme Court ruled that state and local governments are limited to the same extent as the federal government from infringing upon this right.
The Second Amendment was based partially on the right to keep and bear arms in English common law and was influenced by the English Bill of Rights of 1689. Sir William Blackstone described this right as an auxiliary right, supporting the natural rights of self-defense and resistance to oppression, and the civic duty to act in concert in defense of the state. Any labels of rights as auxiliary must be viewed in the context of the inherent purpose of a Bill of Rights, which is to empower a group with the ability to achieve a mutually desired outcome, and not to necessarily enumerate or rank the importance of rights. Thus all rights enumerated in a Constitution are thus auxiliary in the eyes of Sir William Blackstone because all rights are only as good as the extent they are exercised in fact. While both James Monroe and John Adams supported the Constitution being ratified, its most influential framer was James Madison. In Federalist No. 46, Madison wrote how a federal army could be kept in check by state militias, "a standing army ... would be opposed to a militia." He argued that state militias "would be able to repel the danger" of a federal army, "It may well be doubted whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops." He contrasted the federal government of the United States to the European kingdoms, which he described as "afraid to trust the people with arms", and assured that "the existence of subordinate governments ... forms a barrier against the enterprises of ambition".
By January 1788, Delaware, Pennsylvania, New Jersey, Georgia and Connecticut ratified the Constitution without insisting upon amendments. Several amendments were proposed, but were not adopted at the time the Constitution was ratified. For example, the Pennsylvania convention debated fifteen amendments, one of which concerned the right of the people to be armed, another with the militia. The Massachusetts convention also ratified the Constitution with an attached list of proposed amendments. In the end, the ratification convention was so evenly divided between those for and against the Constitution that the federalists agreed to the Bill of Rights to assure ratification. In United States v Cruikshank (1876), the Supreme Court ruled that, "The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence. The Second Amendments means no more than that it shall not be infringed by Congress, and has no other effect than to restrict the powers of the National Government." In United States v Miller (1939), the Supreme Court ruled that the Second Amendment did not protect weapon types not having a "reasonable relationship to the preservation or efficiency of a well regulated militia".
Petition and assembly.
The Petition Clause protects the right "to petition the government for a redress of grievances". The right expanded over the years: "It is no longer confined to demands for 'a redress of grievances', in any accurate meaning of these words, but comprehends demands for an exercise by the government of its powers in furtherance of the interest and prosperity of the petitioners and of their views on politically contentious matters." The right to petition the government for a redress of grievances therefore includes the right to communicate with government officials, lobbying government officials and petitioning the courts by filing lawsuits with a legal basis. The Petition Clause first came to prominence in the 1830s, when Congress established the gag rule barring anti-slavery petitions from being heard; the rule was overturned by Congress several years later. Petitions against the Espionage Act of 1917 resulted in imprisonment. The Supreme Court did not rule on either issue.
In California Motor Transport Co. v Trucking Unlimited (1972), the Supreme Court said the right to petition encompasses "the approach of citizens or groups of them to administrative agencies (which are both creatures of the legislature, and arms of the executive) and to courts, the third branch of Government. Certainly the right to petition extends to all departments of the Government. The right of access to the courts is indeed but one aspect of the right of petition." Today, thus, this right encompasses petitions to all three branches of the federal government—the Congress, the executive and the judiciary—and has been extended to the states through incorporation. According to the Supreme Court, "redress of grievances" is to be construed broadly: it includes not solely appeals by the public to the government for the redressing of a grievance in the traditional sense, but also, petitions on behalf of private interests seeking personal gain. The right protects not only demands for "a redress of grievances" but also demands for government action. The petition clause includes, according to the Supreme Court, the opportunity to institute non-frivolous lawsuits and mobilize popular support to change existing laws in a peaceful manner.
In Borough of Duryea v Guarnieri (2011), the Supreme Court stated regarding the Free Speech Clause and the Petition Clause:
It is not necessary to say that the two Clauses are identical in their mandate or their purpose and effect to acknowledge that the rights of speech and petition share substantial common ground ... Both speech and petition are integral to the democratic process, although not necessarily in the same way. The right to petition allows citizens to express their ideas, hopes, and concerns to their government and their elected representatives, whereas the right to speak fosters the public exchange of ideas that is integral to deliberative democracy as well as to the whole realm of ideas and human affairs. Beyond the political sphere, both speech and petition advance personal expression, although the right to petition is generally concerned with expression directed to the government seeking redress of a grievance.
Obscenity.
According to the U.S. Supreme Court, the First Amendment's protection of free speech does not apply to obscene speech. Therefore, both the federal government and the states have tried to prohibit or otherwise restrict obscene speech, in particular the form that is now called pornography. As of 2019, pornography, except for child pornography, is in practice free of governmental restrictions in the United States, though pornography about "extreme" sexual practices is occasionally prosecuted. The change in the twentieth century, from total prohibition in 1900 to near-total tolerance in 2000, reflects a series of court cases involving the definition of obscenity. The U.S. Supreme Court has found that most pornography is not obscene, a result of changing definitions of both obscenity and pornography. The legal tolerance also reflects changed social attitudes: one reason there are so few prosecutions for pornography is that juries will not convict.
In Rosen v United States (1896), the Supreme Court adopted the same obscenity standard as had been articulated in a famous British case, Regina v Hicklin (1868). The Hicklin test defined material as obscene if it tended "to deprave or corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall". In the early twentieth century, literary works including An American Tragedy (Theodore Dreiser, 1925) and Lady Chatterley's Lover (D.H. Lawrence, 1928) were banned for obscenity. In the federal district court case United States v One Book Called Ulysses (1933), Judge John M. Woolsey established a new standard to evaluate James Joyce's novel Ulysses (1922), stating that works must be considered in their entirety, rather than declared obscene on the basis of an individual part of the work.
The Supreme Court ruled in Roth v United States (1957) that the First Amendment did not protect obscenity. It also ruled that the Hicklin test was inappropriate; instead, the Roth test for obscenity was "whether to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to the prurient interest". This definition proved hard to apply, however, and in the following decade, members of the Court often reviewed films individually in a court building screening room to determine if they should be considered obscene. Justice Potter Stewart, in Jacobellis v Ohio (1964), famously said that, although he could not precisely define pornography, "I know it when I see it".
The Roth test was expanded when the Court decided Miller v California (1973). Under the Miller test, a work is obscene if:
(a) ... 'the average person, applying contemporary community standards' would find the work, as a whole, appeals to the prurient interest ... (b) ... the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) ... the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Note that "community" standards—not national standards—are applied whether the material appeals to the prurient interest, leaving the question of obscenity to local authorities. Child pornography is not subject to the Miller test, as the Supreme Court decided in New York v Ferber (1982) and Osborne v Ohio (1990), ruling that the government's interest in protecting children from abuse was paramount.
Anonymous speech
In Talley v California (1960), the Court struck down a Los Angeles city ordinance that made it a crime to distribute anonymous pamphlets. Justice Hugo Black wrote in the majority opinion: "There can be no doubt that such an identification requirement would tend to restrict freedom to distribute information and thereby freedom of expression. ... Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind." In McIntyre v Ohio Elections Commission (1995), the Court struck down an Ohio statute that made it a crime to distribute anonymous campaign literature. However, in Meese v Keene (1987), the Court upheld the Foreign Agents Registration Act of 1938, under which several Canadian films were defined as "political propaganda", requiring their sponsors to be identified.
Campaign finance.
In Buckley v Valeo (1976), the Supreme Court reviewed the Federal Election Campaign Act of 1971 and related laws, which restricted the monetary contributions that may be made to political campaigns and expenditure by candidates. The Court affirmed the constitutionality of limits on campaign contributions, saying they "serve the basic governmental interest in safeguarding the integrity of the electoral process without directly impinging upon the rights of individual citizens and candidates to engage in political debate and discussion." However, the Court overturned the spending limits, which it found imposed "substantial restraints on the quantity of political speech".
The court again scrutinized campaign finance regulation in McConnell v Federal Election Commission (2003). The case centered on the Bipartisan Campaign Reform Act of 2002 (BCRA), a federal law that imposed new restrictions on campaign financing. The Supreme Court upheld provisions which barred the raising of soft money by national parties and the use of soft money by private organizations to fund certain advertisements related to elections. However, the Court struck down the "choice of expenditure" rule, which required that parties could either make coordinated expenditures for all its candidates, or permit candidates to spend independently, but not both, which the Court agreed "placed an unconstitutional burden on the parties' right to make unlimited independent expenditures". The Court also ruled that the provision preventing minors from making political contributions was unconstitutional, relying on Tinker v Des Moines Independent Community School District.
Freedom of speech and of the press.
The First Amendment broadly protects the rights of free speech and free press. Free speech means the free and public expression of opinions without censorship, interference and restraint by the government. The term "freedom of speech" embedded in the First Amendment encompasses the decision what to say as well as what not to say. Free press means the right of individuals to express themselves through publication and dissemination of information, ideas and opinions without interference, constraint or prosecution by the government.
The Supreme Court of the United States characterized the rights of free speech and free press as fundamental personal rights and liberties and noted that the exercise of these rights lies at the foundation of free government by free men. In Bond v Floyd (1966), a case involving the Constitutional shield around the speech of elected officials, the Supreme Court declared that the First Amendment central commitment is that, in the words of New York Times Co. v Sullivan (1964), "debate on public issues should be uninhibited, robust, and wide-open." The Court further explained that just as erroneous statements must be protected to give freedom of expression the breathing space it needs to survive, so statements criticizing public policy and the implementation of it must be similarly protected. The Supreme Court in Chicago Police Dept. v Mosley (1972) said:
"But, above all else, the First Amendment means that the government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. To permit the continued building of our politics and culture, and to assure self-fulfillment for each individual, our people are guaranteed the right to express any thought, free from government censorship. The essence of this forbidden censorship is content control. Any restriction on expressive activity because of its content would completely undercut the "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.""
The level of protections with respect to free speech and free press given by the First Amendment is not limitless. As stated in his concurrence in Chicago Police Dept. v Mosley (1972), Chief Justice Warren E. Burger said:
"Numerous holdings of this Court attest to the fact that the First Amendment does not literally mean that we "are guaranteed the right to express any thought, free from government censorship." This statement is subject to some qualifications, as for example those of Roth v United States (1957); Chaplinsky v New Hampshire (1942). Refer also to New York Times Company v Sullivan (1964)."
Attached to the rights of free speech and free press as the core rights to utter and to print are several peripheral rights that make these core rights more secure. The peripheral rights encompass not only freedom of association, including privacy in one's associations, but also, in the words of Griswold v Connecticut (1965), "the freedom of the entire university community", for example, the right to distribute, the right to receive, and the right to read, as well as freedom of inquiry, freedom of thought, and freedom to teach. The United States Constitution protects, according to the Supreme Court in Stanley v Georgia (1969), the right to receive information and ideas, regardless of their social worth, and to be generally free from governmental intrusions into one's privacy and control of one's thoughts. As stated by the Court in Stanley: "If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving the government the power to control men's minds."
Accommodationists
Accommodationists, in contrast, argue along with Justice William O Douglas that "we are a religious people whose institutions presuppose a Supreme Being." Furthermore, as observed by Chief Justice Warren E Burger in Walz v Tax Commission of the City of New York (1970) with respect to the separation of church and state: "No perfect or absolute separation is really possible; the very existence of the Religion Clauses is an involvement of sorts—one that seeks to mark boundaries to avoid excessive entanglement." He also coined the term "benevolent neutrality" as a combination of neutrality and accommodationism in Walz to characterize a way to ensure that there is no conflict between the Establishment Clause and the Free Exercise Clause. Burger's successor, William Rehnquist, called for the abandonment of the "wall of separation between church and State" metaphor in Wallace v Jaffree (1985), because he believed this metaphor was based on bad history and proved itself useless as a guide to judging.
David Shultz has said that accommodationists claim the Lemon test should be applied selectively. As such, for many conservatives, the Establishment Clause solely prevents the establishment of a state church, not public acknowledgements of God nor 'developing policies that encourage general religious beliefs that do not favor a particular sect and are consistent with the secular government's goals'. In Lynch v Donnelly (1984), the Supreme Court observed that the "concept of a "wall" of separation between church and state is a useful metaphor, but is not an accurate description of the practical aspects of the relationship that in fact exists. The Constitution does not require complete separation of church and state; it affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any."
Free exercise of religion.
The acknowledgement of religious freedom as the first right protected in the Bill of Rights points toward the American founders' understanding of the importance of religion to human, social, and political flourishing. The First Amendment makes clear that it sought to protect "the free exercise" of religion, or what might be called "free exercise equality." Free exercise is the liberty of persons to reach, hold, practice and change beliefs freely according to the dictates of conscience. The Free Exercise Clause prohibits government interference with religious belief and, within limits, religious practice. "Freedom of religion means freedom to hold an opinion or belief, but not to take action in violation of social duties or subversive to good order." The Free Exercise Clause offers a double protection, for it is a shield not only against outright prohibitions with respect to the free exercise of religion, but also against penalties on the free exercise of religion and against indirect governmental coercion. Relying on Employment Division v Smith (1990) and quoting from Church of the Lukumi Babalu Aye Inc v Hialeah (1993) the Supreme Court stated in Trinity Lutheran Church of Columbia Inc v Comer (2017) that religious observers are protected against unequal treatment by virtue of the Free Exercise Clause and laws which target the religious for "special disabilities" based on their "religious status" must be covered by the application of strict scrutiny.
Establishment of religion.
The precise meaning of the Establishment Clause can be traced back to the beginning of the 19th century. Thomas Jefferson wrote about the First Amendment and its restriction on Congress in an 1802 reply to the Danbury Baptists, a religious minority that was concerned about the dominant position of the Congregational church in Connecticut, who had written to the newly elected president about their concerns. Jefferson wrote back:
Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should "make no law respecting an establishment of religion, or prohibiting the free exercise thereof", thus building a wall of separation between Church & State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.
In Reynolds v United States (1878) the Supreme Court used these words to declare that "it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured. Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order." Quoting from Jefferson's Virginia Statute for Religious Freedom the court stated further in Reynolds:
In the preamble of this act ... religious freedom is defined; and after a recital 'that to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy which at once destroys all religious liberty,' it is declared 'that it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order.' In these two sentences is found the true distinction between what properly belongs to the church and what to the State.
A April 22, 1885, cartoon from the Puck magazine depicting an army of clergymen assaulting a fortress defended by newspaper editors including from Puck, while atop a hill in the background a statue labeled "Constitution" that states "Congress shall make no law respecting an establishment of religion" can be seen.
Reynolds was the first Supreme Court decision to use the metaphor "a wall of separation between Church and State." American historian George Bancroft was consulted by Chief Justice Morrison Waite in Reynolds regarding the views on establishment by the Founding Fathers. Bancroft advised Waite to consult Jefferson and Waite then discovered the above quoted letter in a library after skimming through the index to Jefferson's collected works according to historian Don Drakeman.
The First Amendment (Amendment 1) to the United States Constitution prevents the government from making laws which regulate an establishment of religion, or that would prohibit the free exercise of religion, or abridge the freedom of speech, the freedom of the press, the freedom of assembly, or the right to petition the government for redress of grievances. It was adopted on December 15, 1791, as one of the ten amendments that constitute the Bill of Rights.
The Bill of Rights was proposed to assuage Anti-Federalist opposition to Constitutional ratification. Initially, the First Amendment applied only to laws enacted by the Congress, and many of its provisions were interpreted more narrowly than they are today. Beginning with Gitlow v New York (1925), the Supreme Court applied the First Amendment to states—a process known as incorporation—through the Due Process Clause of the Fourteenth Amendment.
In Everson v Board of Education (1947), the Court drew on Thomas Jefferson's correspondence to call for "a wall of separation between church and State", though the precise boundary of this separation remains in dispute. Speech rights were expanded significantly in a series of 20th and 21st century court decisions which protected various forms of political speech, anonymous speech, campaign finance, pornography, and school speech; these rulings also defined a series of exceptions to First Amendment protections. The Supreme Court overturned English common law precedent to increase the burden of proof for defamation and libel suits, most notably in New York Times Co. v Sullivan (1964). Commercial speech, however, is less protected by the First Amendment than political speech, and is therefore subject to greater regulation.
The Free Press Clause protects publication of information and opinions, and applies to a wide variety of media. In Near v Minnesota (1931) and New York Times v United States (1971), the Supreme Court ruled that the First Amendment protected against prior restraint—pre-publication censorship—in almost all cases. The Petition Clause protects the right to petition all branches and agencies of government for action. In addition to the right of assembly guaranteed by this clause, the Court has also ruled that the amendment implicitly protects freedom of association.
Although the First Amendment applies only to state actors, there is a common misconception that it prohibits anyone from limiting free speech, including private, non-governmental entities. Moreover, the Supreme Court has determined that protection of speech is not absolute.
Thirty-three amendments to the United States Constitution have been proposed by the United States Congress and sent to the states for ratification since the Constitution was put into operation on March 4, 1789. Twenty-seven of these, having been ratified by the requisite number of states, are part of the Constitution. The first 10 amendments were adopted and ratified simultaneously and are known collectively as the Bill of Rights. Six amendments adopted by Congress and sent to the states have not been ratified by the required number of states. Four of these amendments are still pending, 1 is closed and has failed by its own terms, and 1 is closed and has failed by the terms of the resolution proposing it. All 33 amendments are listed and detailed in the tables below.
Article Five of the United States Constitution details the two-step process for amending the nation's frame of government. Amendments must be properly proposed and ratified before becoming operative. This process was designed to strike a balance between the excesses of constant change and inflexibility.
An amendment may be proposed and sent to the states for ratification by either:
The U.S. Congress, whenever a two-thirds majority in both the Senate and the House of Representatives deem it necessary; or,
A national convention, called by Congress for this purpose, on the application of the legislatures of two-thirds of the states (34 since 1959). The convention option has never been used.
To become part of the Constitution, an amendment must be ratified by three-fourths of the states (38 since 1959) by either (as determined by Congress):
The legislatures of three-fourths of the states; or,
State ratifying conventions in three-fourths of the states. The only amendment to be ratified through the state convention method thus far is the Twenty-first Amendment in 1933. That amendment is also the only one that explicitly repeals an earlier one, the Eighteenth Amendment (ratified in 1919), establishing the prohibition of alcohol.
When a constitutional amendment is sent to the states for ratification, the Archivist of the United States is charged with responsibility for administering the ratification process under the provisions of 1 U.S.C. § 106b. Then, upon being properly ratified, the archivist issues a certificate proclaiming that an amendment has become an operative part of the Constitution.
Beginning in the early 20th century, Congress has usually, but not always, stipulated that an amendment must be ratified by the required number of states within seven years from the date of its submission to the states in order to become part of the Constitution. Congress's authority to set a ratification deadline was affirmed in 1939 by the United States Supreme Court in Coleman v Miller (307 U.S. 433).
Article Seven of the United States Constitution sets the number of state ratifications necessary for the Constitution to take effect and prescribes the method through which the states may ratify it. Under the terms of Article VII, constitutional ratification conventions were held in each of the thirteen states, with the ratification of nine states required for the Constitution to take effect. Delaware was the first state to ratify the Constitution, doing so on December 7, 1787. On June 21, 1788, New Hampshire became the ninth state to ratify the Constitution, ensuring that the Constitution would take effect. Rhode Island was the last state to ratify the Constitution under Article VII, doing so on May 29, 1790.
Text.
The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.
Background.
On September 20, 1787, three days after its adoption by the Constitutional Convention, the drafted Constitution was submitted to the Congress of the Confederation for its endorsement. After eight days of debate, the opposing sides came to the first of many compromises that would define the ratification process. The Confederation Congress voted to release the proposed Constitution to the states for their consideration, but neither endorsed nor opposed its ratification.
Ratification.
The Constitution was ratified by the 13 states between December 7, 1787, and May 29, 1790, as follows:
Implementation.
In 1787 and 1788, following the Constitutional Convention, a great debate took place throughout the United States over the Constitution that had been proposed. The supporters of the Constitution began the ratification campaign in those states where there was little or no controversy, postponing until later the more difficult ones.
On June 21, 1788, New Hampshire became the ninth state to ratify the Constitution, thus establishing it as the new framework of governance for the United States. Though officially enacted, four states, Virginia, New York, North Carolina, and Rhode Island remained outside the new government. The Congress of the Confederation chose March 4, 1789, as the day "for commencing proceedings under the Constitution." Virginia and New York ratified the Constitution before the members of the new Congress assembled on the appointed day to bring the new government into operation.
After twelve amendments, including the ten in the Bill of Rights, were sent to the states in June 1789, North Carolina ratified the Constitution. Finally, Rhode Island, after having rejected the Constitution in a March 1788 referendum, called a ratifying convention in 1790. Faced with the threat of being treated as a foreign government, it ratified the Constitution by just two votes.
Article Six of the United States Constitution establishes the laws and treaties of the United States made in accordance with it as the supreme law of the land, forbids a religious test as a requirement for holding a governmental position, and holds the United States under the Constitution responsible for debts incurred by the United States under the Articles of Confederation.
Text.
All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be Required as a Qualification To any Office or public Trust under the United States.
Clauses.
Debts.
The first clause of the Article provides that debts contracted prior to the adoption of the Constitution remain valid, as they were under the Articles of Confederation.
Supremacy.
Clause two provides that the Constitution, federal laws made pursuant to it, and treaties made under its authority constitute the supreme law of the land. It provides that state courts are bound by the supreme law; in case of conflict between federal and state law, the federal law must be applied. Even state constitutions are subordinate to federal law.
The Supreme Court under John Marshall (the Marshall Court) was influential in construing the supremacy clause. It first ruled that it had the power to review the decisions of state courts allegedly in conflict with the supreme law, claims of "state sovereignty" notwithstanding. In Martin v Hunter's Lessee (1816), the Supreme Court confronted the Chief Justice of Virginia, Spencer Roane, who had previously declared a Supreme Court decision unconstitutional and refused to permit the state courts to abide by it. The Court upheld the Judiciary Act, which permitted it to hear appeals from state courts, on the grounds that Congress had passed it under the supremacy clause.
The Supreme Court has also struck down attempts by states to control or direct the affairs of federal institutions. McCulloch v Maryland (1819) was a significant case in this regard. The state of Maryland had levied a tax on banks not chartered by the state; the tax applied, state judges ruled, to the Bank of the United States chartered by Congress in 1816. Marshall wrote that "the States have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by Congress to carry into execution the powers vested in the general government." United States property is wholly immune to state taxation, as are government activities and institutions. Congress may explicitly provide immunity from taxation in certain cases, for instance by immunizing a federal contractor. Federal employees, however, may not be immunized from taxes, as the tax would not in any way impede government activities.
Deadlines.
The practice of limiting the time available to the states to ratify proposed amendments began in 1917 with the Eighteenth Amendment. All amendments proposed since then, with the exception of the Nineteenth Amendment and the (still pending) Child Labor Amendment, have included a deadline, either in the body of the proposed amendment, or in the joint resolution transmitting it to the states. The ratification deadline "clock" begins running on the day final action is completed in Congress. An amendment may be ratified at any time after final congressional action, even if the states have not yet been officially notified.
In Dillon v Gloss (1921), the Supreme Court upheld Congress's power to prescribe time limitations for state ratifications and intimated that clearly out of date proposals were no longer open for ratification. Granting that it found nothing express in Article 5 relating to time constraints, the Court yet allowed that it found intimated in the amending process a "strongly suggest" argument that proposed amendments are not open to ratification for all time or by States acting at widely separate times. The court subsequently, in Coleman v Miller (1939), modified its opinion considerably. In that case, related to the proposed Child Labor Amendment, it held that the question of timeliness of ratification is a political and non-justiciable one, leaving the issue to Congress's discretion. It would appear that the length of time elapsing between proposal and ratification is irrelevant to the validity of the amendment. Based upon this precedent, the Archivist of the United States proclaimed the Twenty-seventh Amendment as having been ratified when it surpassed the "three fourths of the several states" plateau for becoming a part of the Constitution. Declared ratified on May 7, 1992, it had been submitted to the states for ratification—without a ratification deadline—on September 25, 1789, an unprecedented time period of 202 years, 7 months and 12 days.
Extensions.
Whether once it has prescribed a ratification period Congress may extend the period without necessitating action by already-ratified States embroiled Congress, the states, and the courts in argument with respect to the proposed Equal Rights Amendment (Sent to the states on March 22, 1972, with a seven-year ratification time limit attached). In 1978 Congress, by simple majority vote in both houses, extended the original deadline by 3 years, 3 months and 8 days (through June 30, 1982).
Article Five of the United States Constitution describes the process whereby the Constitution, the nation's frame of government, may be altered. Under Article 5, the process to alter the Constitution consists of proposing an amendment or amendments, and subsequent ratification.
Amendments may be proposed either by the Congress with a two-thirds vote in both the House of Representatives and the Senate or by a convention of states called for by two-thirds of the state legislatures. To become part of the Constitution, an amendment must then be ratified by either—as determined by Congress—the legislatures of three-quarters of the states or by ratifying conventions conducted in three-quarters of the states, a process utilized only once thus far in American history with the 1933 ratification of the Twenty-First Amendment. The vote of each state (to either ratify or reject a proposed amendment) carries equal weight, regardless of a state's population or length of time in the Union. Article 5 is silent regarding deadlines for the ratification of proposed amendments, but most amendments proposed since 1917 have included a deadline for ratification. Legal scholars generally agree that the amending process of Article 5 can itself be amended by the procedures laid out in Article 5, but there is some disagreement over whether Article 5 is the exclusive means of amending the Constitution.
In addition to defining the procedures for altering the Constitution, Article 5 also shields three clauses in Article I from ordinary amendment by attaching stipulations. Regarding two of the clauses—one concerning importation of slaves and the other apportionment of direct taxes—the prohibition on amendment was absolute but of limited duration, expiring in 1808; the third was without an expiration date but less absolute: "no state, without its consent, shall be deprived of its equal Suffrage in the Senate." Scholars disagree as to whether this shielded clause can itself be amended by the procedures laid out in Article 5.
Text.
The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.
Section 3: New states and federal property.
Clause 1: Admission of new states.
New States may be admitted by the Congress into this Union; but no new States shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.
The First Clause of Section Three, also known as the Admissions Clause, grants to Congress the authority to admit new states into the Union. Since the establishment of the United States in 1776, the number of states has expanded from the original 13 to 50. It also forbids the creation of new states from parts of existing states without the consent of the affected states and Congress. This latter provision was designed to give Eastern states that still had claims to Western lands (for example, Virginia and North Carolina) to have a veto over whether their western counties (which eventually became Kentucky and Tennessee) could become states. It would later be applied with regard to the formation of Maine (from Massachusetts) and West Virginia (from Virginia).
At the 1787 Constitutional Convention, a proposal to include the phrase, "new States shall be admitted on the same terms with the original States", was defeated. It was feared that the political power of future new western states would eventually overwhelm that of the established eastern states. Once the new Constitution went into effect, however, Congress admitted Vermont and Kentucky on equal terms and thereafter formalized the condition in its acts of admission for subsequent states, declaring that the new state enters "on an equal footing with the original States in all respects whatever." Thus the Congress, utilizing the discretion allowed by the framers, adopted a policy of equal status for all newly admitted states. With the growth of states' rights advocacy during the antebellum period, the Supreme Court asserted, in Lessee of Pollard v. Hagan (1845), that the Constitution mandated admission of new states on the basis of equality.
Congressional restrictions on the equality of states, even when those limitations have been found in the acts of admission, have been held void by the Supreme Court. For instance the Supreme Court struck down a provision which limited the jurisdiction of the state of Alabama over navigable waters within the state. The Court held,
Alabama is, therefore, entitled to the sovereignty and jurisdiction over all the territory within her limits ... to maintain any other doctrine, is to deny that Alabama has been admitted into the union on an equal footing with the original states ... to Alabama belong the navigable waters and soils under them.
The doctrine, however, can also be applied to the detriment of states, as occurred with Texas. Before admission to the Union, Texas, as an independent nation, controlled water within three miles of the coast, the normal limit for nations. Under the equal footing doctrine, however, Texas was found not to have control over the three-mile belt after admission into the Union, because the original states did not at the time of joining the union control such waters. Instead, by entering the Union, Texas was found to have surrendered control over the water and the soil under it to Congress. Under the Submerged Lands Act of 1953, Congress returned maritime territory to some states, but not to others; the Act was sustained by the Supreme Court.
The constitution is silent on the question of whether or not a state may unilaterally leave, or secede from, the Union.
Article Four of the United States Constitution outlines the relationship between the various states, as well as the relationship between each state and the United States federal government. It also empowers Congress to admit new states and administer the territories and other federal lands.
The Full Faith and Credit Clause requires states to extend "full faith and credit" to the public acts, records and court proceedings of other states. The Supreme Court has held that this clause prevents states from reopening cases which have been conclusively decided by the courts of another state. The Privileges and Immunities Clause requires interstate protection of "privileges and immunities," preventing each state from treating citizens of other states in a discriminatory manner. The Extradition Clause requires that fugitives from justice be extradited on the demand of executive authority of the state from which they flee. Since the 1987 case of Puerto Rico v Branstad, federal courts may also use the Extradition Clause to require the extradition of fugitives. The Fugitive Slave Clause requires the return of fugitive slaves; this clause has not been repealed, but it was rendered moot by the Thirteenth Amendment, which abolished slavery.
The Admissions Clause grants Congress the authority to admit new states, but forbids the creation of new states from parts of existing states without the consent of the affected states. The Supreme Court has held that the Constitution requires all states to be admitted on an equal footing, though the Admissions Clause does not expressly include this requirement. The Property Clause grants Congress the power to make laws for the territories and other federal lands. The Guarantee Clause mandates that United States guarantee that all states have a "republican form of government," though it does not define this term. Article Four also requires the United States to protect each state from invasion, and, at the request of a state, from "domestic violence."
Clause 3: Federal trials.
Clause 3 of Section 2 provides that Federal crimes, except impeachment cases, must be tried before a jury, unless the defendant waives their right. Also, the trial must be held in the state where the crime was committed. If the crime was not committed in any particular state, then the trial is held in such a place as set forth by the Congress. The United States Senate has the sole power to try impeachment cases.
Two of the Constitutional Amendments that comprise the Bill of Rights contain related provisions. The Sixth Amendment enumerates the rights of individuals when facing criminal prosecution and the Seventh Amendment establishes an individual's right to a jury trial in certain civil cases. It also inhibits courts from overturning a jury's findings of fact. The Supreme Court has extended the protections of these amendments to individuals facing trial in state courts through the Due Process Clause of the Fourteenth Amendment.
Section 3: Treason.
Section 3 defines treason and limits its punishment.
Treason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
The Constitution defines treason as specific acts, namely "levying War against , or in adhering to their Enemies, giving them Aid and Comfort." A contrast is therefore maintained with the English law, whereby crimes including conspiring to kill the King or "violating" the Queen, were punishable as treason. In Ex Parte Bollman, (1807), the Supreme Court ruled that "there must be an actual assembling of men, for the treasonable purpose, to constitute a levying of war."
Under English law effective during the ratification of the U.S. Constitution, there were several species of treason. Of these, the Constitution adopted only two: levying war and adhering to enemies. Omitted were species of treason involving, encompassing, or imagining the death of the king, certain types of counterfeiting, and finally fornication with women in the royal family of the sort which could call into question the parentage of royal successors. James Wilson wrote the original draft of this section, and he was involved as a defense attorney for some accused of treason against the Patriot cause. The two forms of treason adopted were both derived from the English Treason Act 1351. Joseph Story wrote in his Commentaries on the Constitution of the United States of the authors of the Constitution that:
they have adopted the very words of the Statute of Treason of Edward the Third; and thus by implication, in order to cut off at once all chances of arbitrary constructions, they have recognized the well-settled interpretation of these phrases in the administration of criminal law, which has prevailed for ages.
Whole Woman's Health v Jackson, (2021), was a United States Supreme Court case brought by Texas abortion providers and abortion rights advocates that challenged the constitutionality of the Texas Heartbeat Act, a law that bans abortions after the first 6 weeks of pregnancy. The case centered on whether or not a state can insulate itself from judicial review of its laws by federal courts if it delegates the enforcement of the law to private individuals. The Supreme Court ruled in December 2021 that abortion providers may continue to seek legal actions against certain state officials involved in the enforcement of the law, while dismissing the case against other officials that were not directly involved in that process.
Background.
The Texas Heartbeat Act (also referred to as Senate Bill 8, or SB 8, for short) is a law enacted by the Republican majorities in the 87th Texas Legislature during its regular session that prohibits abortion, including in cases of rape and incest, once a heartbeat is detectable, and thus as early as 6 weeks into a woman's pregnancy.
The Texas law is novel and unique in that it prohibits public enforcement by state actors and instead creates an exclusive mechanism of civil enforcement by private individuals. This was motivated by a desire to avoid ordinary constitutional challenges to restrictive state abortion laws against state officials in federal court. The law was written in a manner to insulate state officials from being the target of lawsuits challenging its constitutionality under the Ex parte Young exception to the sovereign immunity of states in federal court.
Previous litigation.
Shortly before the law took effect on September 1, with the state defendants' appeal pending in the Fifth Circuit, the plaintiffs sought emergency relief in the Supreme Court of the United States in the form of an injunction pending appeal. The Supreme Court denied the request, and issued a collection of dissenting statements by individual members along with its order, which shed light on the divergent views on the court.
Although the majority denied instant relief, and thus allowed the Texas Heartbeat Act to go into effect, the court was careful to note that they were not rendering an opinion on the constitutionality of SB 8, and that such challenges could proceed in lower courts, including state courts. Legal challenges to WWH v Jackson, along with the federal government's case against the state in United States v Texas, continued, and on October 22, 2021, the Supreme Court again denied instant relief, but fast-tracked both to be heard on November 1, 2021.
Clause 3: Salaries.
The compensation of judges may not be decreased, but may be increased, during their continuance in office.
Section 2: Judicial power, jurisdiction, and trial by jury.
Section 2 delineates federal judicial power, and brings that power into execution by conferring original jurisdiction and also appellate jurisdiction upon the Supreme Court. Additionally, this section requires trial by jury in all criminal cases, except impeachment cases.
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State;—between Citizens of different States;—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
United States v Texas was United States Supreme Court case that involved the Texas Heartbeat Act (also known as Senate Bill 8 or SB8), a state law that bans abortion once a fetal heartbeat is detected, typically six weeks into pregnancy. A unique feature of the Act, and challenges to it, is the delegation of enforcement to any and all private individuals who are authorized by the Act to file civil actions against abortion providers who violate it, and aiders and abetters, while state and local officials are prohibited from doing so. The Act is stated by its opponents to go against the landmark 1973 Supreme Court decision Roe v Wade, which bans states from regulating abortions during the first trimester of pregnancy in favor of the woman's right to privacy guaranteed by the Fourteenth Amendment.
As one of several challenges to the law, the Supreme Court within United States v Texas will consider and decide whether the federal government has standing and the right to sue Texas for injunctive and declaratory relief to stop enforcement of the Act through private civil litigation in the Texas judicial system. The case was fast-tracked by the Court and heard on November 1, 2021, alongside Whole Woman's Health v Jackson, which was brought by abortion providers and allies as a pre-enforcement challenge to the constitutionality of the Texas Heartbeat Act under the U.S. constitution. The Supreme Court ruled in a per curiam decision in December 2021 that the writ of certiorari was improvidently granted and dismissed the case.
Background.
Texas passed the Texas Heartbeat Act in May 2021, with the bill to go into effect on September 1, 2021. One of several heartbeat bills in the country, Texas's bill banned abortion once "cardiac activity" in an embryo can be detected, typically after six weeks of pregnancy. Because of the potential conflict with the Supreme Court's ruling in Roe v Wade in that states could not regulate abortions during the first trimester (three months) of pregnancy in the interest of the right of privacy for women, the Texas Heartbeat Act does not allow the state to enforce the ban, but instead gives power to any interested party to sue anyone that performs an illegal abortion or supports that, and seek statutory damages of at least $10,000 in courts.
District Court.
On September 6, 2021, United States Attorney General Merrick Garland announced that the Justice Department (DOJ) will protect abortion seekers under the Freedom of Access to Clinic Entrances Act. On September 8, 2021, The Wall Street Journal reported that the Biden administration plans to sue Texas on the basis that the Act "illegally interferes with federal interests".
Article Three of the United States Constitution establishes the judicial branch of the federal government. Under Article Three, the judicial branch consists of the Supreme Court of the United States, as well as lower courts created by Congress. Article Three empowers the courts to handle cases or controversies arising under federal law, as well as other enumerated areas. Article Three also defines treason.
Section 1 of Article Three vests the judicial power of the United States in the Supreme Court, as well as inferior courts established by Congress. Along with the Vesting Clauses of Article One and Article Two, Article Three's Vesting Clause establishes the separation of powers between the three branches of government. Section 1 authorizes the creation of inferior courts, but does not require it; the first inferior federal courts were established shortly after the ratification of the Constitution with the Judiciary Act of 1789. Section 1 also establishes that federal judges do not face term limits, and that an individual judge's salary may not be decreased. Article Three does not set the size of the Supreme Court or establish specific positions on the court, but Article One establishes the position of chief justice.
Section 2 of Article Three delineates federal judicial power. The Case or Controversy Clause restricts the judiciary's power to actual cases and controversies, meaning that federal judicial power does not extend to cases which are hypothetical, or which are proscribed due to standing, mootness, or ripeness issues. Section 2 states that federal judiciary's power extends to cases arising under the Constitution, federal laws, federal treaties, controversies involving multiple states or foreign powers, and other enumerated areas. Section 2 gives the Supreme Court original jurisdiction when ambassadors, public officials, or the states are a party in the case, leaving the Supreme Court with appellate jurisdiction in all other areas to which the federal judiciary's jurisdiction extends. Section 2 also gives Congress the power to strip the Supreme Court of appellate jurisdiction, and establishes that all federal crimes must be tried before a jury. Section 2 does not expressly grant the federal judiciary the power of judicial review, but the courts have exercised this power since the 1803 case of Marbury v Madison.
Section 3 of Article Three defines treason and empowers Congress to punish treason. Section 3 requires that at least two witnesses testify to the treasonous act, or that the individual accused of treason confess in open court. It also limits the ways in which Congress can punish those convicted of treason.
Section 1: Federal courts.
Section 1 is one of the three vesting clauses of the United States Constitution, which vests the judicial power of the United States in federal courts, requires a supreme court, allows inferior courts, requires good behavior tenure for judges, and prohibits decreasing the salaries of judges.
The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.
Clause 3: Recess appointments.
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
During recesses of the Senate, the president may appoint officers, but their commissions expire at the conclusion of the Senate's next session.
Section 3: Presidential responsibilities.
He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.
Clause 1: State of the Union.
The president must give the Congress information on the "State of the Union" "from time to time." This is called the State of the Union Clause. Originally, presidents personally delivered annual addresses to Congress. Thomas Jefferson, who felt that the procedure resembled the speech from the throne delivered by British monarchs, chose instead to send written messages to Congress for reading by clerks. Jefferson's procedure was followed by future presidents until Woodrow Wilson reverted to the former procedure of personally addressing Congress, which has continued to this day.
Kesavan and Sidak explain the purpose of the State of the Union clause:
The State of the Union Clause imposes an executive duty on the president. That duty must be discharged periodically. The president's assessment of the State of the Union must be publicized to Congress, and thus to the nation. The publication of the president's assessment conveys information to Congress—information uniquely gleaned from the president's perspective in his various roles as commander-in-chief, chief law enforcer, negotiator with foreign powers, and the like—that shall aid the legislature in public deliberation on matters that may justify the enactment of legislation because of their national importance.
Mckesson v Doe, (2020), was a decision by the U.S. Supreme Court that temporarily halted a lawsuit by a police officer against an activist associated with the Black Lives Matter movement, and instructed the lower federal court (the Court of Appeals for the Fifth Circuit) to seek clarification of state law from the Louisiana Supreme Court. At issue was whether the activist, DeRay Mckesson, could be liable under Louisiana tort law for injuries caused by other people at a protest. Mckesson had argued that the First Amendment's protection of freedom of assembly should block the lawsuit entirely. The Court's decision to instead redirect the tort law issue to the Louisiana Supreme Court means that the constitutional question was delayed or avoided.
Background.
In July 2016, the shooting of Alton Sterling by police led to intense protests in Baton Rouge. DeRay Mckesson, an early organizer of the Black Lives Matter movement, participated in these protests and was among over 100 people arrested by Baton Rouge police. The protests included some violent moments, the worst of which was the ambush shooting of six police officers by a man named Gavin Long on July 17. At one protest where Mckesson was present, which blocked a highway in front of the Baton Rouge Police Department headquarters, some protesters took to throwing objects at police, possibly including water bottles, rocks, or pieces of concrete. One of the thrown objects struck and injured an officer, identified in the lawsuit only as "John Doe." His injuries included brain injuries, jaw injuries, and missing teeth.
One of the officers shot by Gavin Long would sue Mckesson and other organizers of the Black Lives Matter movement, but that case, titled Smith v Mckesson, would be dismissed, and the dismissal upheld by the Fifth Circuit in an unpublished (for example, not precedential) opinion.
District Court.
Office "John Doe" sued Mckesson and Black Lives Matter in federal court, arguing that Mckesson was "in charge of the protests", and were therefore responsible for the actions of the protestors. Mckesson argued that the precedent set in NAACP v Claiborne Hardware (a 1982 case that limited the liability of protest organizers) meant the case should be dismissed. Judge Brian Jackson agreed with Mckesson:
. . .the Complaint fails to state a plausible claim for relief against Mckesson and it names as a Defendant a social movement . . ."BlackLivesMatter" — a hashtag — lacks the capacity to be sued. . .
— Doe v Mckesson, (2017) (Judge Jackson, emphasis in original)
Clause 7: Salary / Clause 8: Oath or affirmation
The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.
The president's salary, currently $400,000 a year, must remain constant throughout the president's term. The president may not receive other compensation from either the federal or any state government.
Clause 8: Oath or affirmation.
Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:—"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."
According to the Joint Congressional Committee on Presidential Inaugurations, George Washington added the words "So help me God" during his first inaugural, though this has been disputed. There are no contemporaneous sources for this fact, and no eyewitness sources to Washington's first inaugural mention the phrase at all—including those that transcribed what he said for his oath.
Also, the president-elect's name is typically added after the "I", for example, "I, George Washington, do...." Normally, the chief justice of the United States administers the oath. It is sometimes asserted that the oath bestows upon the president the power to do whatever is necessary to "preserve, protect and defend the Constitution." Andrew Jackson, while vetoing an Act for the renewal of the charter of the national bank, implied that the president could refuse to execute statutes that he felt were unconstitutional. In suspending the privilege of the writ of habeas corpus, President Abraham Lincoln claimed that he acted according to the oath. His action was challenged in court and overturned by the U.S. Circuit Court in Maryland (led by Chief Justice Roger B Taney) in Ex Parte Merryman, (1861). Lincoln ignored Taney's order. Finally, Andrew Johnson's counsel referred to the theory during his impeachment trial. Otherwise, few have seriously asserted that the oath augments the president's powers.
The vice president also has an oath of office, but it is not mandated by the Constitution and is prescribed by statute. Currently, the vice presidential oath is the same as that for members of Congress and members of the Cabinet.
I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God
Tanzin v Tanvir, (2020), was a United States Supreme Court case involving legal remedies that could be sought by litigants against federal officials for violations of the Religious Freedom Restoration Act. In a unanimous decision issued December 10, 2020, the court ruled that the Act allowed for litigants to seek not only injunctive relief but also monetary damages.
Background.
At the center of the case were three men of the Muslim community with either U.S. citizenship or lawful permanent residency. In the wake of the September 11 attacks, the men were approached by Federal Bureau of Investigation (FBI) agents for questioning but not for any involvement of terrorist activity. Instead, the FBI wanted the men to serve "as government spies in their religious communities." The men refused, and the FBI pushed the matter by threatening to add their names to the Transportation Security Administration's No Fly List. The men continued to refuse to participate, and the FBI followed through with the threat around 2013.
The men tried repeatedly to have their names removed through the TSA but were directed to the FBI, which continued to state that if they co-operated by becoming informants in their Muslim communities, they would have their names removed. The men lost money on plane tickets that they could not use and also could not travel to see their families overseas or for other work-related functions.
Lower courts.
The three men sued the FBI in the United States District Court for the Southern District of New York. Upon the commencement of legal action, the FBI took steps to remove their names from the No Fly List and stated that the case should be considered moot. The plaintiffs continued the case, seeking monetary compensation, and asserted that it was allowed for by the Religious Freedom Restoration Act (RFRA), which allows for one to "obtain appropriate relief against a government" when one's religious rights are harmed by a federal officer of the government.
The District Court ruled to dismiss the case by asserting that the "appropriate relief" clause of the RFRA does not allow for monetary recovery from such damages and that with the removal from the No Fly List, there were no further remedies that the men could pursue.
The men appealed to the Second Circuit Appeals Court, which reversed the District Court's decision in May 2018, and allowed their case to go forward. The Second Circuit found the District Court erred in the reading of the RFRA since the suit was directed at the specific agents of the FBI whose actions had adversely affected the men's religious freedom, and monetary compensation was considered part of the appropriate relief that could be awarded. The Second Circuit declined to rehear the case en banc, with multiple judges dissenting.
Clause 3: Electoral College.
The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each, which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately choose by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner choose the President. But in choosing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall choose from them by Ballot the Vice President.
(Note: This procedure was changed by the 12th Amendment in 1804.)
Article Two of the United States Constitution establishes the executive branch of the federal government, which carries out and enforces federal laws. Article Two vests the power of the executive branch in the office of the president of the United States, lays out the procedures for electing and removing the president, and establishes the president's powers and responsibilities.
Section 1 of Article Two establishes the positions of the president and the vice president, and sets the term of both offices at four years. Section 1's Vesting Clause declares that the executive power of the federal government is vested in the president and, along with the Vesting Clauses of Article One and Article Three, establishes the separation of powers among the three branches of government. Section 1 also establishes the Electoral College, the body charged with electing the president and the vice president. Section 1 provides that each state chooses members of the Electoral College in a manner directed by each state's respective legislature, with the states granted electors equal to their combined representation in both houses of Congress. Section 1 lays out the procedures of the Electoral College and requires the House of Representatives to hold a contingent election to select the president if no individual wins a majority of the electoral vote. Section 1 also sets forth the eligibility requirements for the office of the president, provides procedures in case of a presidential vacancy, and requires the president to take an oath of office.
The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows:
Section 1 begins with a vesting clause that confers federal executive power upon the president. Similar clauses are found in Article 1 and Article 3; the former bestows federal legislative power exclusively to Congress, and the latter grants judicial power solely to the Supreme Court, and other federal courts established by law. These three articles together secure a separation of powers among the three branches of the federal government, and individually, each one entrenches checks and balances on the operation and power of the other two branches.
Article I grants certain powers to Congress, and the Vesting Clause does not reassign those powers to the President. In fact, because those actions require legislation passed by Congress which must be signed by the president to take effect, those powers are not strictly executive powers granted to or retained by Congress per se. Nor were they retained by the U.S. Congress as leftovers from the Articles of Confederation. The Articles of Confederation, Continental Congress and its powers were abolished at the time the new U.S. Congress was seated and the new federal government formally and officially replaced its interim predecessor. And although the president is implicitly denied the power to unilaterally declare war, a declaration of war is not in and of itself a vehicle of executive power since it is literally just a public declaration that the U.S. government considers itself "at war" with a foreign political entity.
United States v Briggs, was a United States Supreme Court case involving whether the United States Court of Appeals for the Armed Forces (CAAF) erred in ruling that the Uniform Code of Military Justice allows prosecution of a rape committed between 1986 and 2006 only if it was discovered and charged within five years. The Court, with the exception of Justice Amy Coney Barrett who did not participate in the case, ruled unanimously that under the Uniform Code, such crimes that are "punishable by death" under the Code do not have a statute of limitations unlike similar civilian crimes.
This case was considered notable due to its implications on the issue of sexual assault in the United States military and the military's ability to address these types of cases. The case was consolidated with another, similar case called United States v Collins.
Background.12/01/2021
Legal environment.
Under United States federal law, there is a separation between military and civilian law. Congress enacted the Uniform Code of Military Justice (UCMJ) to create a separate, parallel legal system for the military, which is enforced by its own judicial system. In general, under the UCMJ crimes prosecuted under military law must be charged within five years due to the statute of limitations, with the primary exception being the crime of desertion or being absent without leave during a time of war. In 1986, Congress passed a law to exempt certain capital offenses (those punishable by the death penalty) from the statute of limitations as well. At the time of the 1986 amendment, capital offenses included rape. However, in 1977, the Supreme Court ruled in Coker v Georgia that imposing the death penalty for rape violated the Eighth Amendment. Congress subsequently amended the UCMJ again to clarify that there was no statute of limitations for rape under the National Defense Authorization Act for fiscal year 2006. This created an ambiguity in the law as it relates to rape and sexual assault cases that took place between 1986 (when Congress initially removed the statute of limitations for all capital offenses) and 2006 (when Congress clarified that the statute of limitations did not apply to rape even though rape was no longer a capital offense). This was resolved by the Court of Appeals for the Armed Forces in their 2018 ruling United States v Mangahas. In Mangahas, the Court of Appeals for the Armed Forces ruled that, because rape was not a capital offense since 1977 due to Coker v Georgia and because Congress did not pass a law separately excluding rape from the general statute of limitations, the general 5-year statute of limitations would apply to all rape cases stemming from incidents that took place before 2006. As a result of this ruling, several pending rape investigations were suspended and cases that were on appeal were dismissed.
The first clause in this section prevents Congress from passing any law that would restrict the importation of slaves into the United States prior to 1808. Congress could, however, levy a per capita duty of up to ten Spanish milled dollars for each slave imported into the country. This clause was further entrenched into the Constitution by Article 5, where it is explicitly shielded from constitutional amendment prior to 1808. On March 2, 1807, Congress approved legislation prohibiting the importation of slaves into the United States, which went into effect January 1, 1808, the first day of the prohibition permitted by the Constitution.
Clauses 2 and 3: Civil and legal protections.
A writ of habeas corpus is a legal action against unlawful detainment that commands a law enforcement agency or other body that has a person in custody to have a court inquire into the legality of the detention. The court may order the person released if the reason for detention is deemed insufficient or unjustifiable. The Constitution further provides that the privilege of the writ of habeas corpus may not be suspended "unless when in cases of rebellion or invasion the public safety may require it". In Ex parte Milligan (1866), the Supreme Court ruled that the suspension of habeas corpus in a time of war was lawful, but military tribunals did not apply to citizens in states that had upheld the authority of the Constitution and where civilian courts were still operating.
A bill of attainder is a law by which a person is immediately convicted without trial. An ex post facto law is a law which applies retroactively, punishing someone for an act that was only made criminal after it was done. The ex post facto clause does not apply to civil matters.
Clauses 4–7: Apportionment of direct taxes.
Section Nine reiterates the provision from Section Two, Clause 3 that direct taxes must be apportioned by state populations. This clause was also explicitly shielded from constitutional amendment prior to 1808 by Article 5. In 1913, the 16th Amendment exempted all income taxes from this clause. This overcame the ruling in Pollock v Farmers' Loan & Trust Company that the income tax could only be applied to regular income and could not be applied to dividends and capital gains. Furthermore, no tax may be imposed on exports from any state. Congress may not, by revenue or commerce legislation, give preference to ports of one state over those of another; neither may it require ships from one state to pay duties in another. All funds belonging to the Treasury may not be withdrawn except according to law. Modern practice is that Congress annually passes a number of appropriations bills authorizing the expenditure of public money. The Constitution requires that a regular statement of such expenditures be published.
Clause 8: Titles of nobility.
The Title of Nobility Clause prohibits Congress from granting any title of nobility. In addition, it specifies that no civil officer may accept, without the consent of Congress, any gift, payment, office or title from a foreign ruler or state. Emoluments were a profound concern of the Founders. However, a U.S. citizen may receive foreign office before or after their period of public service.
Trump v New York was a United States Supreme Court case dealing with the 2020 United States Census. It centered on the validity of an executive memorandum written by President Donald Trump in July 2020 to the Department of Commerce, which conducts and reports the Census. The memo ordered the Department to report the results of the Census with the exclusion of the estimated counts of illegal immigrants. The memo was challenged by a coalition of U.S. states led by New York along with several cities and other organizations suing to block action on the memo. The United States District Court for the Southern District of New York found for the states and blocked enforcement of the memo, leading Trump to seek emergency action from the Supreme Court to rule on the matter before the results of the Census are due by December 31, 2020. The Court issued a per curiam decision on December 18, 2020, vacating the District Court's ruling and dismissing the case on the basis that there were matters related to lack of standing and ripeness that made the case premature. The same decision was reached by the court on December 18, 2020, for the similar "Trump v Useche" case.
While multiple states vowed to bring the case back to the Supreme Court immediately after implementation was done, thereby establishing standing and ripeness, the Trump Administration struggled immensely with implementation (due in part to the Supreme Court case Department of Commerce v New York). Ultimately, Trump's successor after the 2020 election, Joe Biden, issued Executive Order 13986 which required non-citizens to be counted in the 2020 census, both for the purposes of enumeration and determining congressional apportionment, thereby reversing the Trump administration and ending the controversy.
The Congress shall have Power To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.
The Supreme Court has seldom restrained the use of the commerce clause for widely varying purposes. The first important decision related to the commerce clause was Gibbons v Ogden, decided by a unanimous Court in 1824. The case involved conflicting federal and state laws: Thomas Gibbons had a federal permit to navigate steamboats in the Hudson River, while the other, Aaron Ogden, had a monopoly to do the same granted by the state of New York. Ogden contended that "commerce" included only buying and selling of goods and not their transportation. Chief Justice John Marshall rejected this notion. Marshall suggested that "commerce" includes navigation of goods, and that it "must have been contemplated" by the Framers. Marshall added that Congress's power over commerce "is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution".
The expansive interpretation of the Commerce Clause was restrained during the late nineteenth and early twentieth centuries, when a laissez-faire attitude dominated the Court. In United States v E C Knight Company (1895), the Supreme Court limited the newly enacted Sherman Antitrust Act, which had sought to break up the monopolies dominating the nation's economy. The Court ruled that Congress could not regulate the manufacture of goods, even if they were later shipped to other states. Chief Justice Melville Fuller wrote, "commerce succeeds to manufacture, and is not a part of it."
The U.S. Supreme Court sometimes ruled New Deal programs unconstitutional because they stretched the meaning of the commerce clause. In Schechter Poultry Corp. v United States, (1935) the Court unanimously struck down industrial codes regulating the slaughter of poultry, declaring that Congress could not regulate commerce relating to the poultry, which had "come to a permanent rest within the State." As Chief Justice Charles Evans Hughes put it, "so far as the poultry here in question is concerned, the flow of interstate commerce has ceased." Judicial rulings against attempted use of Congress's Commerce Clause powers continued during the 1930s.
The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.
Senators and representatives set their own compensation. Under the Twenty-seventh Amendment, any change in their compensation will not take effect until after the next congressional election. Paying senators and representatives out of the federal treasury was a departure from the practice under the Articles of Confederation, where they were paid by the state in which they were elected.
Members of both houses have certain privileges, based on those enjoyed by the members of the British Parliament. Members attending, going to or returning from either house are privileged from arrest, except for treason, felony or breach of the peace. One may not sue a senator or representative for slander occurring during Congressional debate, nor may speech by a member of Congress during a Congressional session be the basis for criminal prosecution. The latter was affirmed when Mike Gravel published over 4,000 pages of the Pentagon Papers in the Congressional Record, which might have otherwise been a criminal offense. This clause has also been interpreted in Gravel v United States, (1972) to provide protection to aides and staff of sitting members of Congress, so long as their activities relate to legislative matters.
Clause 2: Independence from the executive.
No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been increased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.
Senators and representatives may not simultaneously serve in Congress and hold a position in the executive branch. This restriction is meant to protect legislative independence by preventing the president from using patronage to buy votes in Congress. It is a major difference from the political system in the British Parliament, where cabinet ministers are required to be members of parliament.
Furthermore, senators and representatives cannot resign to take newly created or higher-paying political positions; rather, they must wait until the conclusion of the term for which they were elected. If Congress increases the salary of a particular officer, it may later reduce that salary to permit an individual to resign from Congress and take that position (known as the Saxbe fix). The effects of the clause were discussed in 1937, when Senator Hugo Black was appointed an associate justice of the Supreme Court with some time left in his Senate term. Just prior to the appointment, Congress had increased the pension available to Justices retiring at the age of seventy. It was therefore suggested by some that the office's emolument had been increased during Black's senatorial term, and that therefore Black could not take office as a justice. The response, however, was that Black was fifty-one years old, and would not receive the increased pension until at least 19 years later, long after his Senate term had expired.
Salinas v Railroad Retirement Board (2021) was a United States Supreme Court case in which the court held that the United States Railroad Retirement Board choice to refuse to reopen the prior, adverse benefits determination of a former railroad worker was subject to judicial review.
Facts and procedural history.
Manfredo M. Salinas was an employee of the Union Pacific Railroad for a fifteen-year period and was injured twice while working. In 1992, due to his injuries, Salinas began the process of seeking disability benefits provided under the Railroad Retirement Act of 1974. His application was denied three times, the final denial occurring in 2006. Salinas was granted benefits after a fourth application in 2013. After the board granted Salinas benefits, he appealed for reconsideration of the "amount and start date" of the benefits.
This reconsideration was denied. In response, Salinas appealed, arguing that the final denied application should be reopened, as the Railroad Retirement Board had not been given access to pertinent medical records in 2006. A Board hearing officer determined that the 2006 application could not be reopened as the Board’s standard four-year window for reopening had closed. After this determination, Salinas asked the U.S. Court of Appeals to review the decision. The Fifth Circuit dismissed Salinas’ petition, citing lack of jurisdiction.
Federal Republic of Germany v Philipp was a United States Supreme Court case that dealt with the applicability of the Foreign Sovereign Immunities Act (FSIA) for heirs of victims of the Holocaust to sue Germany in the United States court systems for compensation for items that were taken by the Nazi Party during World War II. At issue in the case was whether claims fell within the FSIA’s exception to sovereign immunity for “property taken in violation of international law,” given that the sovereign here was alleged to have engaged in a taking of its own nationals’ property; and whether courts can invoke the doctrine of international comity under the FSIA to abstain from exercising jurisdiction based on prudential considerations. In an unanimous opinion by Chief Justice Roberts, the Court held that FSIA does not allow these survivors to sue Germany in U.S. court, as the sale was an act of expropriation of property rather than an act of genocide, though other means of recovery are still potentially available.
The decision also concluded a related case, Republic of Hungary v Simon, which examined the application of the doctrines of international comity and forum non conveniens for expropriation exception cases brought under the FSIA. The Court decided the case per curiam on the ruling of Germany v Philipp on February 3, 2021.
Background.
During World War II, the Nazi Party imprisoned numerous people, including a large number of Jewish people, and stripped them of their possessions. In other cases, the Nazi rule forced these people to sell their possessions at significantly reduced prices. At the center of the current case is the Guelph Treasure with an estimated value of US$250 million in 2020. The items were purchased by a consortium of Jewish art dealers prior to the war, but they were then forced to sell the collection at a third of its value in 1935 to agents of Hermann Göring. After the war, the Guelph Treasure pieces were moved to the Kunstgewerbemuseum Berlin (Museum of Decorative Arts) which is overseen by the Federal Republic of Germany under the Prussian Cultural Heritage Foundation, where they have remained as part of the exhibits.
Clause 6: Trial of impeachment.
The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.
Clause Six grants to the Senate the sole power to try impeachments and spells out the basic procedures for impeachment trials. The Supreme Court has interpreted this clause to mean that the Senate has exclusive and unreviewable authority to determine what constitutes an adequate impeachment trial. Of the nineteen federal officials formally impeached by the House of Representatives, four resigned (so that proceedings were dismissed), seven were acquitted, and eight (all judges) were convicted by the Senate.
On another occasion, the Senate declined to proceed with the impeachment of Senator William Blount in 1797, asserting that the House had no jurisdiction over members of the Senate; in any case, Blount had already been expelled from the Senate.
The constitution's framers vested the Senate with this power for several reasons. First, they believed senators would be better educated, more virtuous, and more high-minded than members of the House of Representatives and thus uniquely able to decide responsibly the most difficult of political questions. Second, they believed that the Senate, being a numerous body, would be well suited to handle the procedural demands of an impeachment trial, in which it, unlike judges and the judiciary system, would "never be tied down by such strict rules, either in the delineation of the offense by the prosecutor, or in the construction of it by judges, as in the common cases serve to limit the discretion of courts in favor of personal security." (Alexander Hamilton, The Federalist No. 65).
There are three Constitutionally mandated requirements for impeachment trials. The provision that senators must sit on oath or affirmation was designed to impress upon them the extreme seriousness of the occasion. The stipulation that the Chief Justice is to preside over presidential impeachment trials underscores the solemnity of the occasion, and aims to avoid the conflict of interest of a vice president presiding over the proceeding for the removal of the one official standing between them and the presidency. The latter consideration was regarded to be quite important in the eighteenth century - political parties had not yet formed when the Constitution was adopted, and with the original method of electing the president and vice president it was presumed that the two people elected to those offices would frequently be political rivals. The specification that a two-thirds supermajority vote of those senators present in order to convict was also thought necessary to facilitate serious deliberation and to make removal possible only through a consensus that cuts across factional divisions.
Pereida v Wilkinson, (2021), was a United States Supreme Court (the Court) case in which the Court ruled that under the Immigration and Nationality Act (INA) an alien seeking to cancel a lawful removal order bears the burden of showing that he has not been convicted of a disqualifying offense. An alien has not carried that burden when the record shows he has been convicted under a statute limiting multiple offenses, some of which are disqualifying, and the record is ambiguous as to which crime formed the basis of his conviction.
Background.
Under the INA, certain nonpermanent residents may seek to cancel an order of removal and adjust to the status of an alien lawfully admitted for permanent residence by applying to the United States Attorney General through the Executive Office for Immigration Review (EOIR), a subagency of the United States Department of Justice. As part of their application, the alien must demonstrate that they (1) have been physically present in the United States for a continuous period of not less than 10 years immediately preceding the application, (2) have been a person of good moral character during such period, (3) have not been convicted of an offense that would either render them inadmissible to be admitted to the United States or deportable from the United States, and (4) establishes that removal would result in exceptional and extremely unusual hardship to the alien's qualifying relative who is a United States citizen or lawful permanent resident.
Clemente Avelino Pereida was a citizen of Mexico who entered the United States without authorization or inspection in approximately 1995. He relocated to Nebraska with his family, was gainfully employed and paid taxes, and with his wife raised three children, one a U.S. citizen and another a Deferred Action for Childhood Arrivals recipient. After an arrest, he was identified as an unlawfully present alien, and placed into removal proceedings in 2009. He did not contest his removability but instead applied to cancel his removal and adjust status to a lawful permanent resident. To demonstrate the requirements for cancellation of removal meant he had to produce records of his criminal history. But given his recent arrest, he was progressing through immigration proceedings in tandem with his criminal case.
In his criminal case, state authorities charged him with attempted criminal impersonation for using a false Social Security card to seek employment at National Service Company of Iowa. The Nebraska Statute section 28-608 (2008) charged four different means in which a person could violate attempted criminal impersonation. Pereida was found guilty under the statute, he paid a fine and served no jail time for the offense.
While Pereida identified his conviction for his cancellation of removal application, he declined to offer any evidence of his conviction. The United States Department of Homeland Security produced his criminal complaint but that document did not specify which of the four means he actually violated. That was problematic because three of the means were disqualifying offenses as a crime involving moral turpitude (CIMT) that rendered him inadmissible or deportable while one (carrying a business without a license) did not. Pereida argued that such ambiguity meant that his prior conviction could not be construed as a disqualifying offense to bar eligibility for relief. The EOIR Immigration Judge presiding over his case determined that Pereida's attempted criminal impersonation conviction was a CIMT that disqualified him from cancellation of removal and ordered him removed from the United States.
Clause 3: Apportionment of Representatives and taxes.
Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to choose three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.
After much debate, the framers of the Constitution decided to make population the basis of apportioning the seats in the House of Representatives and the tax liability among the states. To facilitate this, the Constitution mandates that a census be conducted every ten years to determine the population of each state and of the nation as a whole and establishes a rule for who shall be counted or excluded from the count. As the new form of government would become operational prior to the completion of a national census, the Constitution also provides for a temporary apportionment of seats.
Originally, the population of each state and of the nation as a whole was ascertained by adding to the whole number of free Persons, three-fifths the number of all other Persons (for example, slaves), but excluding non-taxed Native Americans. This Constitutional rule, known as the three-fifths compromise, was a compromise between Southern and Northern states in which three-fifths of the population of slaves would be counted for enumeration purposes and for the apportionment of seats in the House of Representatives and of taxes among the states. It was, according to Supreme Court Justice Joseph Story (writing in 1833), a "matter of compromise and concession, confessedly unequal in its operation, but a necessary sacrifice to that spirit of conciliation, which was indispensable to the union of states having a great diversity of interests, and phyal condition, and political institutions". Section 2 of the Fourteenth Amendment (1868) later superseded Article 1, Section 2, Clause 3 and explicitly repealed the compromise.
Following the completion of each census, Congress is empowered to use the aggregate population in all the states (according to the prevailing Constitutional rule for determining population) to determine the relative population of each state to the population of the whole, and, based on its calculations, to establish the appropriate size of the House and to allocate a particular number of representatives to each state according to its share of the national population.
Article One of the United States Constitution establishes the legislative branch of the federal government, the United States Congress. Under Article One, Congress is a bicameral legislature consisting of the House of Representatives and the Senate. Article One grants Congress various enumerated powers and the ability to pass laws "necessary and proper" to carry out those powers. Article One also establishes the procedures for passing a bill and places various limits on the powers of Congress and the states from abusing their powers.
Article One Vesting Clause grants all federal legislative power to Congress and establishes that Congress consists of the House of Representatives and the Senate. In combination with the Vesting Clauses of Article Two and Article Three, the Vesting Clause of Article One establishes the separation of powers among the three branches of the federal government. Section 2 of Article One addresses the House of Representatives, establishing that members of the House are elected every two years, with congressional seats apportioned to the states on the basis of population. Section 2 includes various rules for the House of Representatives, including a provision stating that individuals qualified to vote in elections for the largest chamber of their state's legislature have the right to vote in elections for the House of Representatives. Section 3 addresses the Senate, establishing that the Senate consists of two senators from each state, with each senator serving a six-year term. Section 3 originally required that the state legislatures elect the members of the Senate, but the Seventeenth Amendment, ratified in 1913, provides for the direct election of senators. Section 3 lays out various other rules for the Senate, including a provision that establishes the vice president of the United States as the president of the Senate.
Section 4 of Article One grants the states the power to regulate the congressional election process but establishes that Congress can alter those regulations or make its own regulations. Section 4 also requires Congress to assemble at least once per year. Section 5 lays out various rules for both houses of Congress and grants the House of Representatives and the Senate the power to judge their own elections, determine the qualifications of their own members, and punish or expel their own members. Section 6 establishes the compensation, privileges, and restrictions of those holding congressional office. Section 7 lays out the procedures for passing a bill, requiring both houses of Congress to pass a bill for it to become law, subject to the veto power of the president of the United States. Under Section 7, the president can veto a bill, but Congress can override the president's veto with a two-thirds vote of both chambers.
Uzuegbunam v Preczewski, is a decision by the Supreme Court of the United States, dealing with nominal damages to be awarded to individuals whose right to freedom of speech has been suppressed by an entity but subsequently rendered moot due to intervening circumstances. In an 8–1 decision, the Court held that such nominal damages satisfy the Article Three requirement of redressability, when awarded for a past violation of a legal right.
Clarence Thomas wrote for the majority that Uzuegbunam's inability to quantify his damages in economic terms did not bar him from demanding nominal damages. Chief Justice John Roberts, dissenting alone for the only time so far in his tenure on the Court, argued that the majority had opened up the federal courts to litigation by anyone willing to claim so much as one dollar in nominal damages.
Background.
Chike Uzuegbunam was a student at Georgia Gwinnett College in Lawrenceville, Georgia. While at school, he adopted Christianity, and attempted to proselytize on campus. He was stopped by campus security and told that religious recruitment or proselytizing was limited to certain designated "speech zones" on campus, for use of which he was required to register ahead of time. Uzuegbunam followed the procedure to register a block of time at one of these zones, but due to a student complaint his activities were determined to be violating the policy that disallows speech that "disturbs the peace and/or comfort" of the students or faculty. Uzuegbunam made no further attempts to proselytize, and eventually graduated from the college.
The Alliance Defending Freedom (ADF) filed a lawsuit against the school on behalf of Uzuegbunam in the United States District Court for the Northern District of Georgia in December 2016. Shortly after the filing of the suit, the college changed its policies on its speech zones, which rendered Uzuegbunam's claims moot, since the activities he had attempted to pursue were no longer regulated and, in any event, he had since graduated and was no longer associated with the college. ADF countered with an assertion that the college should still be liable for nominal damages as it had violated Uzuegbunam's rights at some point in the past. Such nominal damages, typically a single dollar, are generally assigned to assert that wrongdoing had occurred as part of case law.
While the case was being heard in District Court, its appellate court, the Eleventh Circuit, ruled in Flanigan's Enters., Inc v City of Sandy Springs that "a claim for nominal damages in a constitutional violation case when the conduct is not likely to reoccur is moot". The District Court applied the Eleventh's Flanigan's ruling to Uzuegbunam's ruling and declared that the request for nominal damages was moot. The appeal of Uzuegbunam's case to the Eleventh Circuit upheld the mootness decision.
The Eleventh Circuit court's ruling in Flanigan's had furthered a split in the Circuit courts on the matter of nominal damages resulting from constitutional violations declared moot. In the 2nd, 4th, 5th, 6th, 8th, 9th and 10th Circuits, prior case law has deemed that even in the case of a moot violation, nominal damages are sufficient to keep a case alive. Legal experts had expected Flanigan's to be taken by the Supreme Court to resolve the circuit split, but the petition was rejected in 2018.
Interpretation.
Aspects of national sovereignty.
The Preamble's reference to the "United States of America" has been interpreted over the years to explain the nature of the governmental entity that the Constitution created (i.e., the federal government). In contemporary international law, the world consists of sovereign states (or "sovereign nations" in modern equivalent). A state is said to be "sovereign," if any of its ruling inhabitants are the supreme authority over it; the concept is distinct from mere land-title or "ownership." While each state was originally recognized as sovereign unto itself, the Supreme Court held that the "United States of America" consists of only one sovereign nation with respect to foreign affairs and international relations; the individual states may not conduct foreign relations. Although the Constitution expressly delegates to the federal government only some of the usual powers of sovereign governments (such as the powers to declare war and make treaties), all such powers inherently belong to the federal government as the country's representative in the international community.
Domestically, the federal government's sovereignty means that it may perform acts such as entering into contracts or accepting bonds, which are typical of governmental entities but not expressly provided for in the Constitution or laws. Similarly, the federal government, as an attribute of sovereignty, has the power to enforce those powers that are granted to it (for example, the power to "establish Post Offices and Post Roads" includes the power to punish those who interfere with the postal system so established). The Court has recognized the federal government's supreme power over those limited matters entrusted to it. Thus, no state may interfere with the federal government's operations as though its sovereignty is superior to the federal government's (discussed more below); for example, states may not interfere with the federal government's near absolute discretion to sell its own real property, even when that real property is located in one or another state. The federal government exercises its supreme power not as a unitary entity, but instead via the three coordinate branches of the government (legislative, executive, and judicial), each of which has its own prescribed powers and limitations under the Constitution. In addition, the doctrine of separation of powers functions as a limitation on each branch of the federal government's exercise of sovereign power.
United States Fish and Wildlife Service v Sierra Club, Inc. was a U.S. Supreme Court case involving whether the use of a Freedom of Information Act (FOIA) request can be used to access documents from a U.S. agency that are protected under the deliberative process privilege exemption, in this specific case, draft biological opinions made and reviewed by the United States Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) prior to a final rulemaking decision by the Environmental Protection Agency (EPA) related to impacts on endangered aquatic species, requested by the Sierra Club. The Court ruled in a 7 to 2 decision in 2021 that the government does not have to disclose "draft biological opinions" involving potential threats to endangered species, even though the drafts reflect an agency's final proposal. The ruling limits environmental groups' ability to obtain government documents using the FOIA.
Background.
In 2011, the Environmental Protection Agency (EPA) proposed a new rule for using water from natural sources for cooling of industrial equipment. Since aquatic species may be drawn up in the uptake of this water, including endangered species, the EPA was required under the Endangered Species Act of 1973 to consult with the United States Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) to determine if this rule would properly safeguard endangered species before finalizing the rule. This included creating biological opinions on whether the EPA's rule put endangered species in jeopardy or not.
Over the next two years, the EPA consulted with the FWS and NMFS adjusting the proposed rule to address initial concerns. The FWS and NMFS agreed to provide the biological opinions that the Endangered Species Act required, and had developed draft versions by the end of 2013 that both stated that the EPA's proposed rule (as amended through 2013) would put endangered species in jeopardy. Instead of sharing these with the EPA, both the FWS and NMFS decided instead to extend their consultations with the EPA into 2014. After a few months, the EPA released a new proposed rule that was significantly different from the original 2011 rule. The FWS and NFMS subsequently provided "no jeopardy" biological opinions to the EPA that supported implementation of the new rule. The EPA formally issued this new rule in March 2014 after receiving these reports.
The Sierra Club sought information on the background of this rule by using Freedom of Information Act (FOIA) requests to obtain all the documentation behind its development. While both the FWS and NMFS provided much of their documentation in their consultation period with the EPA, they did not provide the 2013 draft biological opinions, asserting these were protected by deliberative process privilege, one of the allowed FOIA exemptions, and previously affirmed by case law in 1975 by NLRB v Sears, Roebuck & Company as to protect "documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated". The Sierra Club was seeking to obtain these draft opinions of the EPA regarding rules governing underwater structures used to cool industrial equipment. Specifically, the Sierra Club wanted to see the report about how the intake systems could harm endangered species. The Sierra Club sued in the Northern District of California for release of these draft opinions, since they reflected on the state of the proposed 2013 EPA rather than its final 2014 rule. The district court agreed with the Sierra Club in July 2017 and ordered release of the drafts, which was upheld on appeal by the government by the Ninth Circuit in December 2018.
The Preamble to the United States Constitution, beginning with the words We the People, is a brief introductory statement of the Constitution's fundamental purposes and guiding principles. Courts have referred to it as reliable evidence of the Founding Fathers' intentions regarding the Constitution's meaning and what they hoped the Constitution would achieve.
Text.
We the People of the United States, in Order to form a more perfect Union, establish Justice, ensure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
Drafting.
The Preamble was placed in the Constitution during the last days of the Constitutional Convention by the Committee on Style, which wrote its final draft, with Gouverneur Morris leading the effort. It was not proposed or discussed on the floor of the convention beforehand. The initial wording of the preamble did not refer to the people of the United States; rather, it referred to people of the various states, which was the norm. In earlier documents, including the 1778 Treaty of Alliance with France, the Articles of Confederation, and the 1783 Treaty of Paris recognizing American independence, the word "people" was not used, and the phrase the United States was followed immediately by a listing of the states, from north to south. The change was made out of necessity, as the Constitution provided that, whenever the popularly elected ratifying conventions of nine states gave their approval, it would go into effect for those nine, irrespective of whether any of the remaining states ratified.
Torres v Madrid (2021) was a United States Supreme Court case based on what constitutes a "seizure" in the context of the Fourth Amendment to the United States Constitution, in the immediate case, in the situation where law enforcement had attempted to use physical force to stop a suspect but failed to do so. The Court ruled in a 5 to 3 decision that the use of physical force with the intent to restrain a person, even if that fails to restrain the person, is considered a seizure.
Background.
In July 2014, police officers were on a stakeout of an apartment complex in Albuquerque, New Mexico, to serve a warrant to a person known to be living there. Roxanne Torres had driven to the complex to drop off a passenger. Two of the officers approached her car as a possible person of interest and gave her instructions to get out of the car or allow them to open the doors. However, as it was dark, and both officers were in darker clothing and tactical vests, though still wore police badges, Torres mistook their orders as a possible carjacking and began to set the car in motion. The officers believed she was driving towards them and fired multiple shots into the vehicle. Torres was hit multiple times but continued to drive the car off and away from the officers, evading any immediate pursuit, and eventually to a hospital to be treated.
Several legal actions followed. Torres pleaded no contest in 2015 to several counts of evading a law enforcement officer and assault on an officer. The district attorney's office reviewed the case and declined to file any charges against the officers as body cam footage showed both wore the identification identifying them as officers.
Torres filed a civil action against the officers in the United States District Court for the District of New Mexico, asserting that the officers' use of gunfire was "excessive force" under the Fourth Amendment to the United States Constitution. Torres argued that the officers' actions prior to her trying to move the car amounted to an arrest and seizure, and thus the use of gunfire to stop her was unreasonable at that point. The district court judge concluded that in the situation at hand, Torres had never been arrested or seized by the officers so the Fourth Amendment rights did not apply as they never had physical control of Torres. As all other actions that officers took fell within qualified immunity, the District Court granted summary judgement to the officers. Torres appealed to the United States Court of Appeals for the Tenth Circuit. The Tenth Circuit affirmed the District Court's judgement, in that Torres was never arrested or seized, and thus has no Fourth Amendment claim.
Separation of powers.
The Supreme Court balances several pressures to maintain its roles in national government. It seeks to be a co-equal branch of government, but its decrees must be enforceable. The Court seeks to minimize situations where it asserts itself superior to either President or Congress, but federal officers must be held accountable. The Supreme Court assumes power to declare acts of Congress as unconstitutional but it self-limits its passing on constitutional questions. But the Court's guidance on basic problems of life and governance in a democracy is most effective when American political life reinforces its rulings.
Justice Brandeis summarized four general guidelines that the Supreme Court uses to avoid constitutional decisions relating to Congress: The Court will not anticipate a question of constitutional law nor decide open questions unless a case decision requires it. If it does, a rule of constitutional law is formulated only as the precise facts in the case require. The Court will choose statutes or general law for the basis of its decision if it can without constitutional grounds. If it does, the Court will choose a constitutional construction of an Act of Congress, even if its constitutionality is seriously in doubt.
Likewise with the Executive Department, Edwin Corwin observed that the Court does sometimes rebuff presidential pretensions, but it more often tries to rationalize them. Against Congress, an Act is merely "disallowed". In the executive case, exercising judicial review produces "some change in the external world" beyond the ordinary judicial sphere. The "political question" doctrine especially applies to questions which present a difficult enforcement issue. Chief Justice Charles Evans Hughes addressed the Court's limitation when political process allowed future policy change, but a judicial ruling would "attribute finality". Political questions lack "satisfactory criteria for a judicial determination".
Ford Motor Co. v Montana (Eighth Judicial District) was a U.S. Supreme Court case involving personal jurisdiction of a state court in product liability lawsuits. The case, consolidated with Ford Motor Company v Bandemer, involved two product liability lawsuits brought against the Ford Motor Company at the state level related to two drivers' injuries in separate accidents involving Ford's vehicles in Montana and Minnesota. Ford challenged the lawsuits as the vehicles in question were manufactured elsewhere so the states did not have personal jurisdiction over that conduct. The Supreme Court ruled in a 8 to 0 decision that because, under the Due Process Clause, the claims "arise out of or relate to" Ford's business and marketing activities, those activities gave sufficient claim for the states to assert personal jurisdiction over the liability lawsuits.
Background.
Two 2015 accidents involving Ford vehicles were at the basis of the case. In Montana, an accident involving a separated tire tread on a Ford Explorer caused the death of the driver, Markkaya Gullett. In Minnesota, Adam Bandemer had rear-ended a snow plot in a Ford Crown Victoria, causing him to end up in a ditch, but the car's airbags failed to deploy, leading to him to suffer a brain injury.
In both cases, the parties (Gullett's estate and Bandemer) filed suit against Ford over defects in their products in their respective state courts. Ford sought a motion to dismiss both cases on the basis that the state courts lacked personal jurisdiction. Ford argued that the cars themselves were designed and manufactured in other states or in Canada, and only by right of sale ended up in those states. Because of that, there was no relevant connection between their activities of designing and manufacturing the car and the accidents in the states for the state courts to have jurisdiction. These motions were rejected by state district courts and through appeals to both the Montana Supreme Court and Minnesota Supreme Court, upholding lower court rulings that Ford's activities include purposeful promotions and sales of vehicles to their states' residents. Under the Due Process Clause, the courts ruled that the plaintiffs' claims "arise out of or relate to" Ford's business activities in states, thus allowing the state courts to hear these cases.
Judicial review.
The way the Constitution is understood is influenced by court decisions, especially those of the Supreme Court. These decisions are referred to as precedents. Judicial review is the power of the Court to examine federal legislation, federal executive, and all state branches of government, to decide their constitutionality, and to strike them down if found unconstitutional.
Judicial review includes the power of the Court to explain the meaning of the Constitution as it applies to particular cases. Over the years, Court decisions on issues ranging from governmental regulation of radio and television to the rights of the accused in criminal cases have changed the way many constitutional clauses are interpreted, without amendment to the actual text of the Constitution.
Legislation passed to implement the Constitution, or to adapt those implementations to changing conditions, broadens and, in subtle ways, changes the meanings given to the words of the Constitution. Up to a point, the rules and regulations of the many federal executive agencies have a similar effect. If an action of Congress or the agencies is challenged, however, it is the court system that ultimately decides whether these actions are permissible under the Constitution.
The Supreme Court has indicated that once the Constitution has been extended to an area (by Congress or the Courts), its coverage is irrevocable. To hold that the political branches may switch the Constitution on or off at will would lead to a regime in which they, not this Court, say "what the law is".
Scope and theory.
Courts established by the Constitution can regulate government under the Constitution, the supreme law of the land. First, they have jurisdiction over actions by an officer of government and state law. Second, federal courts may rule on whether coordinate branches of national government conform to the Constitution. Until the twentieth century, the Supreme Court of the United States may have been the only high tribunal in the world to use a court for constitutional interpretation of fundamental law, others generally depending on their national legislature.
The basic theory of American Judicial review is summarized by constitutional legal scholars and historians as follows: the written Constitution is fundamental law. It can change only by extraordinary legislative process of national proposal, then state ratification. The powers of all departments are limited to enumerated grants found in the Constitution. Courts are expected (a) to enforce provisions of the Constitution as the supreme law of the land, and (b) to refuse to enforce anything in conflict with it.
In Convention. As to judicial review and the Congress, the first proposals by Madison (Va) and Wilson (Pa) called for a supreme court veto over national legislation. In this it resembled the system in New York, where the Constitution of 1777 called for a "Council of Revision" by the Governor and Justices of the state supreme court. The council would review and in a way, veto any passed legislation violating the spirit of the Constitution before it went into effect. The nationalist's proposal in Convention was defeated three times, and replaced by a presidential veto with Congressional override. Judicial review relies on the jurisdictional authority in Article III, and the Supremacy Clause.
Facebook, Inc. v Duguid (2021) was a United States Supreme Court case related to the definition and function of auto dialers under the Telephone Consumer Protection Act of 1991 (TCPA) to send unsolicited text messages. In a unanimous decision based on statutory interpretation of the TCPA, the Supreme Court ruled that auto dialers are defined by their function to either store or produce telephone numbers from a random or sequential number generator.
Background.
The Telephone Consumer Protection Act of 1991 (TCPA) was passed to cut down the number of unsolicited calls that consumers were receiving. Among its provisions, the TCPA disallowed the use of automated dialers from being used to contact consumers through services that may cost the consumer money, such as through cell phones or text messaging, with violations accessed and fined by the Federal Communications Commission (FCC). Amendments have been made to the TCPA; relevant to this case was an amendment added in 2015 that exempted automated calls made to pay-for consumer lines for federal debt collection purposes. Since its inception, this "auto dialer" provision of the TCPA has been challenged as a violation of free speech rights under the First Amendment of the United States Constitution, but the federal Circuit Courts have generally upheld all challenges to the statute. The 2015 amendment created a new line of arguments to challenge the auto dialer statute of the TCPA as it carved out an exception for one type of speech and made the whole statute fundamentally content-based and unconstitutional. Concurrent to this case, the judicial proceedings of Barr v American Association of Political Consultants, Inc., one of the direct challenges to the 2015 amendment that sought to invalidate the auto dialer statute of the TCPA, began working its way to the Supreme Court.
Starting in 2014, Noah Duguid began receiving text messages on his cell phone from Facebook warning him about suspicious account activity, despite the fact he had not set up a Facebook account. Duguid reached out to Facebook to rectify the situation, but Facebook did nothing to stop the messages. Duguid filed a class-action lawsuit in the United States District Court for the Northern District of California in March 2015, asserting that Facebook violated the auto dialer statute of the TCPA because the messages he received were being placed by an automatic telephone dialing system (ATDS) and seeking $1,500.00 for each message he had received. Facebook objected to the lawsuit, challenging both Duguid's claim that their notification system for logic security was an ATDS, as the messages sent were targeted to specific phone numbers and not the sequential or random number behavior associated with ATDS, and asserting that the auto dialer statute of the TCPA with the 2015 amendment was a content-based speech restriction that violated the First Amendment. Due to the latter complaint, the federal government injected itself into the case to seek its dismissal in favor of Facebook as to protect the constitutionality of the TCPA. The judge agreed on the case's dismissal, ruling in Facebook's favor that Duguid had failed to show that Facebook's logic security notification system qualified as an ATDS.
The Thirteenth Amendment (1865) abolished slavery and involuntary servitude, except as punishment for a crime, and authorized Congress to enforce abolition. Though millions of slaves had been declared free by the 1863 Emancipation Proclamation, their post Civil War status was unclear, as was the status of other millions. Congress intended the Thirteenth Amendment to be a proclamation of freedom for all slaves throughout the nation and to take the question of emancipation away from politics. This amendment rendered inoperative or moot several of the original parts of the constitution.
The Fourteenth Amendment (1868) granted United States citizenship to former slaves and to all persons "subject to U.S. jurisdiction". It also contained three new limits on state power: a state shall not violate a citizen's privileges or immunities; shall not deprive any person of life, liberty, or property without due process of law; and must guarantee all persons equal protection of the laws. These limitations dramatically expanded the protections of the Constitution. This amendment, according to the Supreme Court's Doctrine of Incorporation, makes most provisions of the Bill of Rights applicable to state and local governments as well. It superseded the mode of apportionment of representatives delineated in Article 1, Section 2, Clause 3, and also overturned the Supreme Court's decision in Dred Scott v Sandford (1857).
The Fifteenth Amendment (1870) prohibits the use of race, color, or previous condition of servitude in determining which citizens may vote. The last of three post Civil War Reconstruction Amendments, it sought to abolish one of the key vestiges of slavery and to advance the civil rights and liberties of former slaves.
The Nineteenth Amendment (1920) prohibits the government from denying women the right to vote on the same terms as men. Prior to the amendment's adoption, only a few states permitted women to vote and to hold office.
The Twenty-third Amendment (1961) extends the right to vote in presidential elections to citizens residing in the District of Columbia by granting the District electors in the Electoral College, as if it were a state. When first established as the nation's capital in 1800, the District of Columbia's five thousand residents had neither a local government, nor the right to vote in federal elections. By 1960 the population of the District had grown to over 760,000.
The Twenty-fourth Amendment (1964) prohibits a poll tax for voting. Although passage of the Thirteenth, Fourteenth, and Fifteenth Amendments helped remove many of the discriminatory laws left over from slavery, they did not eliminate all forms of discrimination. Along with literacy tests and durational residency requirements, poll taxes were used to keep low-income (primarily African American) citizens from participating in elections. The Supreme Court has since struck down these discriminatory measures, opening democratic participation to all.
The Twenty-sixth Amendment (1971) prohibits the government from denying the right of United States citizens, eighteen years of age or older, to vote on account of age. The drive to lower the voting age was driven in large part by the broader student activism movement protesting the Vietnam War. It gained strength following the Supreme Court's decision in Oregon v Mitchell (1970).
FCC v Prometheus Radio Project was a United States Supreme Court case dealing with media ownership rules that the Federal Communications Commission (FCC) can set under the Telecommunications Act of 1996. The case dates back to Third Circuit rulings from 2002 that have blocked FCC decisions to relax media ownership rules related to cross-ownership of newspapers with television and radio broadcast stations. In the present case, the Supreme Court ruled unanimously in April 2021 that the FCC had not made arbitrary and capricious rulemaking decisions in the context of the Administrative Procedure Act, nor had the requirement to review minority ownership of stations under Congressional mandate as stated in the Third Circuit's ruling, reversing this last ruling and allowing the FCC to proceed to relax cross-media ownership rules.
Background.
In the United States, the Federal Communications Commission (FCC) had been given authority under the Communications Act of 1934 to set media ownership rules of broadcast services such as radio and television that served the same community as to manage the broadcasting spectrum. In 1975, the FCC enacted a rule restricting cross-media ownership, preventing newspapers from also owning broadcast services, as to reduce concentration of media ownership that had been occurring in the years prior. While the FCC could not regulate newspapers, they could extend their regulation on broadcast services to cover cross-ownership.
The 1975 rule led to a number of debates on the cross-media ownership rules, as they were found to become barriers to entry into the market. Among other functions, the Telecommunications Act of 1996 instructed the FCC to perform a review of its rules related to media ownership every four years and repeal rules that no longer made sense in the current market as to foster competition within the communications industry.
Amending the Constitution
The procedure for amending the Constitution is outlined in Article Five (see above). The process is overseen by the archivist of the United States. Between 1949 and 1985, it was overseen by the administrator of General Services, and before that by the secretary of state.
Under Article Five, a proposal for an amendment must be adopted either by Congress or by a national convention, but as of 2020 all amendments have gone through Congress. The proposal must receive two-thirds of the votes of both houses to proceed. It is passed as a joint resolution, but is not presented to the president, who plays no part in the process. Instead, it is passed to the Office of the Federal Register, which copies it in slip law format and submits it to the states. Congress decides whether the proposal is to be ratified in the state legislature or by a state ratifying convention. To date all amendments have been ratified by the state legislatures except one, the Twenty-first Amendment.
A proposed amendment becomes an operative part of the Constitution as soon as it is ratified by three-fourths of the States (currently 38 of the 50 states). There is no further step. The text requires no additional action by Congress or anyone else after ratification by the required number of states. Thus, when the Office of the Federal Register verifies that it has received the required number of authenticated ratification documents, it drafts a formal proclamation for the Archivist to certify that the amendment is valid and has become part of the nation's frame of government. This certification is published in the Federal Register and United States Statutes at Large and serves as official notice to Congress and to the nation that the ratification process has been successfully completed.
Ratified amendments.
The Constitution has twenty-seven amendments. Structurally, the Constitution's original text and all prior amendments remain untouched. The precedent for this practice was set in 1789, when Congress considered and proposed the first several Constitutional amendments. Among these, Amendments 1 thru 10 are collectively known as the Bill of Rights, and Amendments 13 thru 15 are known as the Reconstruction Amendments. Excluding the Twenty-seventh Amendment, which was pending before the states for 202 years, 225 days, the longest pending amendment that was successfully ratified was the Twenty-second Amendment, which took 3 years, 343 days. The Twenty-sixth Amendment was ratified in the shortest time, 100 days. The average ratification time for the first twenty-six amendments was 1 year, 252 days; for all twenty-seven, 9 years, 48 days.
Florida v Georgia, (2018), was a decision by the Supreme Court of the United States in an original jurisdiction case. It involves a long-running dispute over waters within the ACF River Basin, running from the north Georgia mountains through metro Atlanta to the Florida panhandle, which is managed by the United States Army Corps of Engineers. Waters in the area have been stressed by the population growth of Atlanta over previous decades. The immediate case stemmed from droughts in 2011 and 2012 that caused economic damage to Florida due to lower water flows from the ACF River Basin into the panhandle, impacting its seafood production; Florida sought relief to have more water allocated towards them from the ACF by placing a water allocation cap on Georgia. The Supreme Court assigned a special master to review Florida's complaint, but ultimately found in 2016 that Florida had not fully demonstrated the need for more allocation. Florida challenged this determination to the Supreme Court. On June 27, 2018, the Supreme Court ruled 5–4 that the special master had not properly considered Florida's argument and remanded the case to be reheard and reviewed.
Subsequently, the court replaced the special master, who later ruled against Florida in the dispute. Florida challenged the conclusions of the special master's report, but the Supreme Court overruled Florida's exceptions and unanimously dismissed the case in Florida v Georgia, (2021).
Background.
The case involves the Apalachicola-Chattahoochee-Flint (ACF) River Basin, which includes three major rivers in the southeast United States. The Chattahoochee River runs from the southern end of the Appalachian Mountains in northern Georgia and runs south-southwest and towards the Gulf of Mexico; it forms the state border between Georgia and Alabama. The Flint River forms from groundwater seepage in northern Georgia, and also runs south-southwest until it meets with the Chattahoochee at the southern edge of both Georgia and Alabama. The combined rivers become the Apalachicola River which then crosses Florida's panhandle and empties into Apalachicola Bay, an estuary abutting the Gulf. Besides serving as water sources for various municipal water systems, the ACF River Basin also provides significant quantities of water for agricultural irrigation, and numerous wildlife species reside along the rivers, particularly within the Bay.
With approval from Congress, the United States Army Corps of Engineers completed Buford Dam on the Chattahoochee in Georgia in the 1950s that created the reservoir Lake Lanier. This was intended to help manage the water flow along the Chattahoochee so that it could be used for both hydroelectric power and for water-borne transport through a series of locks, as well as for flood control.
In the second half of the 20th century, Atlanta saw a significant boost in population growth, stressing its water supply that was also coupled with droughts. The Corps, the United States Environmental Protection Agency, the state of Georgia, and the Atlanta Regional Commission conducted a study in 1989 to determine that to meet Atlanta's water needs in the future, the city could be offered the right to purchase some of the water stored in Lake Lanier as long as the city and state paid for the costs of constructing and operating the offtake from the lake to metro Atlanta. The Corps determined that there was no significant environmental impact of this approach.
Article III describes the court system (the judicial branch), including the Supreme Court. The article describes the kinds of cases the court takes as original jurisdiction. Congress can create lower courts and an appeals process, and enacts law defining crimes and punishments. Article Three also protects the right to trial by jury in all criminal cases, and defines the crime of treason.
Section 1 vests the judicial power of the United States in federal courts, and with it, the authority to interpret and apply the law to a particular case. Also included is the power to punish, sentence, and direct future action to resolve conflicts. The Constitution outlines the U.S. judicial system. In the Judiciary Act of 1789, Congress began to fill in details. Currently, Title 28 of the U.S. Code describes judicial powers and administration.
As of the First Congress, the Supreme Court justices rode circuit to sit as panels to hear appeals from the district courts. In 1891, Congress enacted a new system. District courts would have original jurisdiction. Intermediate appellate courts (circuit courts) with exclusive jurisdiction heard regional appeals before consideration by the Supreme Court. The Supreme Court holds discretionary jurisdiction, meaning that it does not have to hear every case that is brought to it.
To enforce judicial decisions, the Constitution grants federal courts both criminal contempt and civil contempt powers. Other implied powers include injunctive relief and the habeas corpus remedy. The Court may imprison for contumacy, bad-faith litigation, and failure to obey a writ of mandamus. Judicial power includes that granted by Acts of Congress for rules of law and punishment. Judicial power also extends to areas not covered by statute. Generally, federal courts cannot interrupt state court proceedings.
Clause 1 of Section 2 authorizes the federal courts to hear actual cases and controversies only. Their judicial power does not extend to cases that are hypothetical, or which are proscribed due to standing, mootness, or ripeness issues. Generally, a case or controversy requires the presence of adverse parties who have some interest genuinely at stake in the case.
Google LLC v Oracle America, Inc. was a legal case within the United States related to the nature of computer code and copyright law. The dispute centered on the use of parts of the Java programming language's application programming interfaces (APIs) and about 11,000 lines of source code, which are owned by Oracle (through subsidiary, Oracle America, Inc., originating from Sun Microsystems), within early versions of the Android operating system by Google. Google has since transitioned Android to a copyright-unburdened engine without the source code, and has admitted to using the APIs but claimed this was within fair use.
Oracle initiated the suit arguing that the APIs were copyrightable, seeking US$8.8 billion in damages from Google's sales and licensing of the earlier infringing versions of Android. While two District Court-level jury trials found in favor of Google, the Federal Circuit court reversed both decisions, asserting APIs are copyrightable and Google's use does not fall under fair use. Google successfully petitioned to the Supreme Court to hear the case in the 2019 term, focusing on the copyrightability of APIs and subsequent fair use; the case was delayed to the 2020 term due to the COVID-19 pandemic. In April 2021, the Supreme Court ruled in a 6–2 decision that Google's use of the Java APIs fell within the four factors of fair use, bypassing the question on the copyrightability of the APIs. The decision reversed the Federal Circuit ruling and remanded the case for further review.
The case has been of significant interest within the tech and software industries, as numerous computer programs and software libraries, particularly in open source, are developed by recreating the functionality of APIs from commercial or competing products to aid developers in interoperability between different systems or platforms.
1788 ratification.
Transmitted to the Congress of the Confederation, then sitting in New York City, it was within the power of Congress to expedite or block ratification of the proposed Constitution. The new frame of government that the Philadelphia Convention presented was technically only a revision of the Articles of Confederation. After several days of debate, Congress voted to transmit the document to the thirteen states for ratification according to the process outlined in its Article VII. Each state legislature was to call elections for a "Federal Convention" to ratify the new Constitution, rather than consider ratification itself; a departure from the constitutional practice of the time, designed to expand the franchise in order to more clearly embrace "the people". The frame of government itself was to go into force among the States so acting upon the approval of nine (i.e. two-thirds of the 13) states; also a departure from constitutional practice, as the Articles of Confederation could be amended only by unanimous vote of all the states.
Three members of the Convention—Madison, Gorham, and King—were also Members of Congress. They proceeded at once to New York, where Congress was in session, to placate the expected opposition. Aware of their vanishing authority, Congress, on September 28, after some debate, resolved unanimously to submit the Constitution to the States for action, "in conformity to the resolves of the Convention", but with no recommendation either for or against its adoption.
Two parties soon developed, one in opposition, the Anti-Federalists, and one in support, the Federalists, of the Constitution; and the Constitution was debated, criticized, and expounded upon clause by clause. Hamilton, Madison, and Jay, under the name of Publius, wrote a series of commentaries, now known as The Federalist Papers, in support of ratification in the state of New York, at that time a hotbed of anti-Federalism. These commentaries on the Constitution, written during the struggle for ratification, have been frequently cited by the Supreme Court as an authoritative contemporary interpretation of the meaning of its provisions. The dispute over additional powers for the central government was close, and in some states, ratification was affected only after a bitter struggle in the state convention itself.
On June 21, 1788, the constitution had been ratified by the minimum of nine states required under Article VII. Towards the end of July, and with eleven states then having ratified, the process of organizing the new government began. The Continental Congress, which still functioned at irregular intervals, passed a resolution on September 13, 1788, to put the new Constitution into operation with the eleven states that had then ratified it. The federal government began operations under the new form of government on March 4, 1789. However, the initial meeting of each chamber of Congress had to be adjourned due to lack of a quorum. George Washington was inaugurated as the nation's first president 8 weeks later, on April 30. The final two states both ratified the Constitution subsequently: North Carolina on November 21, 1789 and Rhode Island on May 29, 1790.
Jones v Mississippi, (2021), was a United States Supreme Court case regarding the imposition of life sentences for juveniles. The Supreme Court had previously ruled in Miller v Alabama in 2012 that mandatory life sentences without parole for juvenile offenders was considered cruel and unusual punishment outside of extreme cases of permanent incorrigibility, and made this decision retroactive in Montgomery v Louisiana in 2016. In Jones, a juvenile offender who was 15 at the time of his offense, challenged his life sentence following Montgomery but was denied by the state. In a 6–3 decision with all six conservative justices upholding the life sentence without parole for Jones, the Court ruled that the states have discretionary ability to hold juvenile offenders to life sentences without parole without having to make a separate assessment of their incorrigibility.
Background.
On August 9, 2004, 15-year-old Mississippi resident Brett Jones (born July 17, 1989) fatally stabbed his grandfather Bertis after a confrontation over Brett's girlfriend. Jones claimed in court his action was in self-defense. In 2005, he was convicted in Lee County Circuit Court and sentenced to life in prison without the possibility of parole, the mandatory sentence under state law.
In 2012, the Supreme Court ruled in Miller v Alabama that mandatory life sentences without the possibility of parole for juveniles was considered a cruel and unusual punishment under the Eighth Amendment to the United States Constitution, and that judges in such cases should be able to consider other factors that may influence such acts. The ruling of Miller v Alabama was made retroactive to all previous cases in the Supreme Court's decision Montgomery v Louisiana. The decision of Montgomery barred the use of life sentences without parole "for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility". Following Miller and Montgomery, several states adjusted their laws to reflect the Court's rulings but Mississippi remained a state where life sentences could still be handed to juveniles determined to be incorrigible.
The state of Mississippi granted Jones a rehearing as a result of Montgomery, but still resentenced him to a life sentence without parole. According to Jones' lawyer, the state court failed to consider any aspect related to the "permanent incorrigibility" or potential for rehabilitation, thus violating the ruling from Montgomery, and thus sought appeals through the Supreme Court.
The Constitution of the United States is the supreme law of the United States of America. This founding document, originally comprising seven articles, delineates the national frame of government. Its first three articles embody the doctrine of the separation of powers, whereby the federal government is divided into three branches: the legislative, consisting of the bicameral Congress (Article 1); the executive, consisting of the president and subordinate officers (Article 2); and the judicial, consisting of the Supreme Court and other federal courts (Article 3). Article 4, Article 5 and Article 6 embody concepts of federalism, describing the rights and responsibilities of state governments, the states in relationship to the federal government, and the shared process of constitutional amendment. Article 7 establishes the procedure subsequently used by the 13 States to ratify it. It is regarded as the oldest written and codified national constitution in force.
Since the Constitution came into force in 1789, it has been amended 27 times, including one amendment that repealed a previous one, in order to meet the needs of a nation that has profoundly changed since the 18th century. In general, the first ten amendments, known collectively as the Bill of Rights, offer specific protections of individual liberty and justice and place restrictions on the powers of government. The majority of the 17 later amendments expand individual civil rights protections. Others address issues related to federal authority or modify government processes and procedures. Amendments to the United States Constitution, unlike ones made to many constitutions worldwide, are appended to the document. All four pages of the original U.S. Constitution are written on parchment.
According to the United States Senate: "The Constitution's first three words—We the People—affirm that the government of the United States exists to serve its citizens. For over two centuries the Constitution has remained in force because its framers wisely separated and balanced governmental powers to safeguard the interests of majority rule and minority rights, of liberty and equality, and of the federal and state governments." The first permanent constitution, it is interpreted, supplemented, and implemented by a large body of federal constitutional law, and has influenced the constitutions of other nations.
AMG Capital Management, LLC v FTC was a U.S. Supreme Court case dealing with the ability of the Federal Trade Commission (FTC) to seek monetary relief for restitution or disgorgement from those it found in violation of trade practices. The Court ruled unanimously that the FTC misused its authority granted by the Federal Trade Commission Act under Section 13(b) to obtain monetary relief.
Background.
Scott Tucker ran several payday loan service companies under several different names (including AMG Capital Management) over a fifteen-year period. The companies drew consumer complaints for charging excessively high interest rates on these loans, with those using their services paying nearly triple what they had taken as a loan from undisclosed fees. The Federal Trade Commission filed a formal civil suit against Tucker's companies in 2012, asserting the companies were deceiving consumers, and sought to recover money that consumers had lost to these practices. Separately, Tucker was also criminally charged under RICO and TILA statutes, estimated to have cost over $2 billion to over 4.5 million consumers; he was convicted on 17 counts in October 2017.
The civil case against Tucker's businesses was heard in the District Court of Nevada by Judge Gloria Navarro. Judge Navarro ruled in October 2016 against Tucker's businesses, granting the $1.27 billion in fees that the FTC had sought in monetary relief for consumers that were harmed by the businesses' practices. The ruling also barred Tucker from engaging in any further consumer lending.
Legal counsel for Tucker appealed the decision to the Ninth Circuit. In addition to challenging the legality of their lending practices, the council also questioned the authority of the FTC to seek monetary damages for restitution under their charter, the Federal Trade Commission Act (FTC Act). Tucker's counsel referred to 15 U.S.C. § 53(b) (also known as Section 13(b) of the FTC Act), which grants the ability to seek injunctive relief in court against those found violating trade practices, a measure added by 1973 amendment to the FTC Act. Tucker's counsel questioned if this amendment was intended to include seeking equitable relief for restitution or disgorgement. The FTC had presumed §13(b) provided this allowance and used the amended language heavily since its introduction to seek monetary relief for consumers that were financially impacted by those the agency had found in violation of fair trade practices. The practice had been backed by prior case laws at lower courts, including FTC v Cephalon, Inc. and FTC v Mylan Labs., Inc..The three-judge panel ruled unanimously to uphold the District Court's ruling, rejecting the counsel's argument about the legality of their lending practices, and asserting that the FTC had the authority to seek monetary relief under the FTC Act.
The Executive: Powers committed to the President of the United States (Article II).
Article II, Section 1, vests the executive power in the President of the United States of America. Unlike the commitment of authority in Article I, which refers to Congress only specifically enumerated powers "herein granted" and such powers as may be necessary and proper to carry out the same, Article II is all-inclusive in its commitment of the executive power in a President of the United States of America.
Enumerated powers of the President Several important powers are expressly committed to the President under Article II, Section 2. These include:
Commander-in-chief of the armed forces.
Power to pardon offenses against the United States.
Power to make treaties (with consent of the Senate); and the
Power to appoint judges, ambassadors, and other officers of the United States (often requiring Senate consent).
The Presentment Clause (Article I, Section 7, cl. 2-3) grants the president the power to veto Congressional legislation and Congress the power to override a presidential veto with a supermajority. Under the clause, once a bill has been passed in identical form by both houses of Congress, with a two thirds majority in both houses, it becomes federal law.
First, the president can sign the bill into law. In this scenario there is Congressional agreement. Second, if not in agreement, the president can veto the legislation by sending the bill back to Congress, within ten days of reception, unsigned and with a written statement of his objections. Third, the president can choose not to act at all on the bill, which can have one of two effects, depending on the circumstances. If Congress is in session, the bill automatically becomes law, without the president's signature, only with a two thirds majority of both houses. If, however, Congress adjourns during that 10-day period, the bill fails to become law in a procedural device known as the "pocket veto". The bill becomes "mute".
The president approves or rejects a bill in its entirety; he is not permitted to veto specific provisions. In 1996, Congress passed, and President Bill Clinton signed, the Line Item Veto Act of 1996, which gave the president the power to veto individual items of budgeted expenditures in appropriations bills. The Supreme Court subsequently declared the line-item veto unconstitutional as a violation of the Presentment Clause in Clinton v City of New York, (1998). The Court construed the Constitution's silence on the subject of such unilateral presidential action as equivalent to "an express prohibition," agreeing with historical material that supported the conclusion that statutes may only be enacted "in accord with a single, finely wrought and exhaustively considered, procedure", and that a bill must be approved or rejected by the president in its entirety. The Court reasoned that a line-item veto "would authorize the President to create a different law--one whose text was not voted on by either House of Congress or presented to the President for signature," and therefore violates the federal legislative procedure prescribed in Article I, Section 7.
Foreign affairs and war powers.
The president has power as commander in chief to control the army. Article I grants congress the power to declare war and raise and support the army and the navy. However, Article II grants the president the power as commander-in-chief. The Supreme Court rarely addresses the issue of the president's use of troops in a war-like situation. Challenges to the president's use of troops in a foreign country are likely to be dismissed on political question grounds. The Supreme Court does not review political questions like whom to go to war with or how to handle rebellions since that is the power of the Federal Executive and Legislative branches.
Caniglia v Strom, (2021), was a United States Supreme Court case related to the Fourth Amendment to the United States Constitution's "community caretaking" exception.
Background.
During a heated argument in their home on August 20, 2015, Edward Caniglia grabbed a pistol from a bedroom and threw it on the dining room table. He then asked his wife, Kim, to shoot him with the gun. Although whether the gun was loaded or not was in dispute, Kim hid the gun and the magazine while Edward left for a "ride" after the fight due to concern for his mental condition. As conflict brewed up after Edward returned home, Kim stayed at a hotel. At the hotel, she phoned a furious Edward that night, who brought up topics from the fight. The next day, Kim was unable to reach Edward through any means of contact. She then decided to contact the Cranston, Rhode Island Police Department's non-emergency line because Kim feared he harmed himself after the tirades. Talking with Officer Mastrati, she mentioned the argument, Edward's behavior, and the firearm. Kim clarified that she was not in danger but worried that her husband was in danger. She was further afraid of what she might discover if she returned home. Mastrati called Edward, who agreed to meet with the police. Officers Mastrati, Smith, Russell, and Sergeant Barth met with him outside the Caniglia household. Kim was waiting nearby in her car. Barth observed Caniglia as appearing "agitated" and "angry" while Mastrati and Russell noted "calm," "cooperative," and "normal" behavior. Kim also remarked that Edward was upset that police were called. Sergeant Barth ultimately concluded that Edward posed a danger to himself and others. He then agreed with Barth's request to receive a psychiatric evaluation at a nearby hospital. According to Edward, he complied with the request only because the officers promised they would not confiscate his weapons if he sought treatment. On that same morning, one of the Caniglias informed police that another firearm was present in the home. Barth asked his superiors to confiscate the firearms, with Captain Henry approving the proposal. Kim directed the officers to the locations of the weapons, along with the magazines and associated ammunition. Police knew that Edward owned the items and did not want them seized. After multiple attempts to retrieve the firearms back from the police department, his lawyer requested in October 2015 that the guns be returned to Edward. Two months later, the firearms were returned. Shortly before getting the guns back, Edward sued the City of Cranston and the police department for violating his 4th Amendment rights.
United States constitutional law is the body of law governing the interpretation and implementation of the United States Constitution. The subject mainly concerns the scope of power of the United States federal government as compared to the individual states and the fundamental rights of individuals. As the ultimate authority on matters of constitutional interpretation, the decisions of the Supreme Court of the United States make up a large portion of constitutional law.
Interpreting the Constitution and the authority of the Supreme Court.
The power of judicial review.
Early in its history, in Marbury v Madison, (1803) and Fletcher v Peck, (1810), the Supreme Court of the United States declared that the judicial power granted to it by Article III of the United States Constitution included the power of judicial review, to consider challenges to the constitutionality of a State or Federal law. According to this jurisprudence, when the Court measures a law against the Constitution and finds the law wanting, the Court is empowered and indeed obligated to strike down that law. In this role, for example, the Court has struck down state laws for failing to conform to the Contract Clause (see, e.g., Dartmouth College v Woodward) or the Equal Protection Clause (see, e.g., Brown v Board of Education), and it has invalidated federal laws for failing to arise under the Commerce Clause of the Constitution (see, for example, United States v Lopez).
Scope and effect.
The Supreme Court's interpretations of constitutional law are binding on the legislative and executive branches of the federal government, on the lower courts in the federal system, and on all state courts. This system of binding interpretations or precedents evolved from the common law system (called "stare decisis"), where courts are bound by their own prior decisions and by the decisions of higher courts. While neither English common law courts nor continental civil law courts generally had the power to declare legislation unconstitutional (only the power to change law), the United States Supreme Court has long been understood to have the power to declare federal or state legislation unconstitutional.
BP PLC v Mayor and City Council of Baltimore was a case in the United States Supreme Court dealing with matters of jurisdiction of various climate change lawsuits in the United States judicial system.
Background.
Around 2017, multiple cities in the United States began filing lawsuits against oil & gas companies, asserting their worldwide activities in mining and production of petroleum products were responsible for climate change effects in their cities and states. The lawsuits broadly sought financial compensation from these companies under their individual state laws to recuperate for costs in fighting changes that arose from climate change, such as offsetting the effects of rising sea levels. Some of the early cases, such as those filed in California and New York City, were first filed in the federal court system; these cases were dismissed early as at the federal level, case law persists that federal laws like the Clear Air Act superseded state laws, and it would be up to the legislative and executive branches to take action against the oil companies under these laws, rather that state and local government.
The city of Baltimore, Maryland, filed its suit against 26 oil companies in July 2018, asserting that these companies contributed to 15 percent of the carbon dioxide emissions between 1965 and 2015 that led to the world's climate change that was threatening its shorelines. Instead of in federal court, the city filed it within the Maryland state courts, which legal experts believed was a viable alternative to the federal court, and would likely be more favorable to the city. This was not the only such climate change lawsuit filed at the state level against the oil companies, and as with these other suits, the defendants requested change of venue to the federal courts under the federal-officer removal statute under the Removal Clarification Act at 28 U.S.C. § 1441, since they operated closely with the federal government. The case was moved to the United States District Court for the District of Maryland.
The city subsequently challenged the removal by citing the lack of subject-matter jurisdiction that the federal court had over state laws, which Judge Ellen Hollander agreed to, ordering the case back to the state court. As the standard for removal puts the onus on the party seeking removal, Judge Hollander rejected the reasons given by the oil companies for keeping the case at the federal level. The defendants appealed to the Fourth Circuit on Hollander's order, but the Fourth Circuit upheld it, ruling that the federal-officer exemption did not apply to the companies despite their close-workings with the federal government.
Edwards v Vannoy is a United States Supreme Court case involving the Court's prior decision in Ramos v Louisiana, (2020), which had ruled that jury verdicts in criminal trials must be unanimous under the Sixth Amendment to the U.S. Constitution. The Supreme Court ruled 6–3 that Ramos did not apply retroactively to earlier cases prior to their verdict in Ramos.
Background.
Under the Sixth Amendment to the U.S. Constitution, a person accused of criminal charges must be tried by a jury. Federal laws required the jury to come to a unanimous decision to achieve conviction, but states had been free to adapt their own requirements for conviction based on the 1972 case Apodaca v Oregon. All but two states adopted the same unanimous jury conviction requirements as federal law; only Louisiana and Oregon allowed for majority jury votes to convict, as well as the Puerto Rico territory. In 2019, Louisiana altered its laws to require a unanimous jury conviction.
Ramos v Louisiana was brought to the Supreme Court to challenge the Louisiana jury-majority conviction law prior to its change on the basis it was a Jim Crow law that allowed for racial discrimination. The Supreme Court ruled in a 6–3 decision in Ramos that the Sixth Amendment was an incorporated right to the states, and that the Louisiana and Oregon allowance for non-unanimous jury convictions was unconstitutional, overturning the Apodaca v Oregon ruling. The decision had split across the typical ideological lines of the Justices, with Chief Justice John Roberts and Justices Samuel Alito and Elana Kagan dissenting.
In the present case, Thedrick Edwards was an African American that was convicted in 2007 in Louisiana on charges of rape, armed robbery, and kidnapping. The jury convictions were all non-unanimous, and Edwards had claimed that the state had manipulated jury selection to minimize the minority representation on the jury; the lone black juror had voted against any convictions. Edwards had spent the intervening years challenging his conviction on the basis that Louisiana's non-unanimous jury conviction laws were unconstitutional and had petitioned to the Supreme Court prior to their Ramos decision on the same questions that Ramos had presented. Upon the Ramos ruling in April 2020, Edwards changed his petition to the Court to ask whether the Ramos decision should apply retroactively.
Guam v United States was a U.S. Supreme Court case dealing with a dispute on fiscal responsibility for environmental and hazardous cleanup of the Ordot Dump created by the United States Navy on the island of Guam in the 1940s, which Guam then ran after becoming a territory in 1950 until the landfill's closure in 2011. The Supreme Court ruled unanimously that under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (aka Superfund), Guam had filed its lawsuit to recover a portion of cleanup costs for the landfill from the United States government in a timely manner, allowing their case to proceed.
Background.
Guam, an island in the Pacific Ocean, had become a key base for the United States Navy during World War II after the United States gained control of it from Japan in the Battle of Guam in 1944. As part of establishing ports and bases on the island, the Navy created the Ordot Dump landfill for disposal of waste, including material like DDT and Agent Orange. After the war, Guam was made into a U.S. territory by the Guam Organic Act of 1950. Since this gave the island its own governance, the Navy transferred control of the Ordot Dump to Guam that year. The Navy continued to use the landfill until the 1970s, while the landfill was the only solid waste disposal facility for Guam until the 2000s. As the landfill was built without liners or caps, it became an environmental hazard. The Environmental Protection Agency (EPA) added the Ordot Dump to the National Priorities List in 1983 and had named the Navy as a potentially responsible party to it in 1988.
In 2002, the EPA filed a complaint against Guam, stating that their management of the Ordot Dump violated the Clean Water Act, as waste contaminants from the dump were found to run off into the nearby Lonfit River and eventually into the Pacific Ocean. A consent decree was achieved in 2004, with Guam agreeing to pay a fine, close the site, and install a cover on the landfill. A separate action initiated by the EPA in 2004 led to the site's forced closure in 2011, and Guam agreeing to remediate affected areas around the landfill. Total costs for completing these, along with other cleanup efforts ordered by the court, were estimated at $160 million.
Guam filed a suit against the United States in 2017 under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA, or Superfund), asserting that since the Navy had been found as a potentially responsible party contributing to the site, the U.S. bears some of the cleanup costs, as outlined in CERCLA Section 107(a). The U.S. moved to close the suit, stating that under the clauses of CERCLA, there was a three-year statute of limitations for filing such complaints under CERCLA Section 113(f)(3)(B), which started with the consent agreement in 2004, and thus Guam had missed its window.
The case was first heard in the United States District Court for the District of Columbia in 2018. The District Court ruled to allow the case to proceed in favor of Guam in September 2018. Judge Ketanji Jackson ruled that the consent degree did not involve liability for the environmental cleanup, nor involved the ability of Guam to seek liability response actions under CERCLA. The government appealed to the District of Columbia Circuit, which reversed the District Court's decision in March 2020 and agreed that the statute of limitations for Guam had expired in 2007, three years after the 2004 consent agreement, as set by Section 113(f)(3)(B).
Van Buren v United States (2021) was a United States Supreme Court case dealing with the Computer Fraud and Abuse Act (CFAA) and its definition of "exceeds authorized access" in relation to one intentionally accessing a computer system they have authorization to access. In June 2021, the Supreme Court ruled in a 6–3 opinion that one "exceeds authorized access" by accessing off-limit files and other information on a computer system they were otherwise authorized to access. The CFAA's language had long created a circuit split in case law, and the Court's decision narrowed the applicability of CFAA in prosecuting cybersecurity and computer crime.
Background.
The Computer Fraud and Abuse Act (CFAA) is a federal law passed in 1986 to strengthen laws around unauthorized access to computer systems. The law was passed partially based on fears from Congress members who saw the 1983 film WarGames. Among its core statutes at 18 U.S.C. § 1030(a)(2) is that intentionally accessing a computer system "without authorization or exceeds authorized access" to obtain protected information, financial records, or federal government information is considered a federal crime that can include fines and imprisonment as a penalty.
The exact definition of "exceeds authorized access" is not clear and created a 4–3 circuit split of cases at the Circuit Courts. In the First, Fifth, Seventh, and Eleventh Circuits, the courts upheld a broad view of the statement, that accessing a computer with authorization but for an improper purpose is a violation of the CFAA. The Second, Fourth, and Ninth Circuits took a more narrow view that a violation only occurs if the authorized user accesses information they were prohibited from accessing.
Because of the case law split, there has been debate on whether the language should be treated narrowly or broadly between cybersecurity researchers and law enforcement among others. For cybersecurity practitioners, a narrow interpretation of "exceeds authorized access" language in §1030(a)(2) would allow them to better conduct work identifying and resolving security problems with computer hardware and software as to make the Internet safer. The vagueness of the statute otherwise puts these job functions at risk. Law enforcement and the U.S. government in general prefer a broader interpretation as this allows them to prosecute those who use hacking to bring down or take advantage of insecure systems under the CFAA. There are additional concerns as the language of CFAA, if broadly interpreted, could apply to commonly-accepted activities at businesses or elsewhere, such as using office computers for browsing the web. Jeffrey L. Fisher, a law professor at Stanford University who represents the petitioner in the present case, states that the law's language is outdated with modern computer usage, and its broad interpretation " a crime out of ordinary breaches of computer restrictions and terms of service that people likely don’t even know about and if they did would have no reason to think would be a federal crime."
Sanchez v Mayorkas, (2021), was a United States Supreme Court case dealing with the ability for immigrants legally residing under temporary protected status to apply for permanent resident status through a green card. In a unanimous decision, the Court ruled in June 2021 that for immigrants who had entered the U.S. unlawfully, simply having temporary protected status did not make them eligible to apply for permanent resident status.
Background.
With the Immigration Act of 1990 and other laws passed since then, Congress gave the United States Attorney General authority to designate temporary protected status (TPS) for immigrants, regardless of how they arrived in the U.S., from countries where they would unable to return safely due situations to such as warfare or environmental disasters, as a humanitarian effort. One's TPS status remains active as long as the country is maintained on the Attorney General's list. As of 2021, about 400,000 immigrants have TPS status.
Jose Sanchez and Sonia Gonzales unlawfully entered the U.S. from El Salvador in 1997 and 1998, respectively. Following the January and February 2001 earthquakes in their native country, the couple applied for and received TPS. They continued to live in the U.S. in New Jersey, raising a family of four, with their youngest becoming a U.S. citizen. In 2014, the couple opted to apply for their green cards to become permanent residents. Citizenship and Immigration Services denied their application, stating that as the couple did not enter the country lawfully, they could not apply for permanent status.
The couple appealed this ruling to the United States District Court for the District of New Jersey. In 2018, the judge ruled for the couple, stating that the virtue of gaining TPS meant the couple was "maintaining lawful status" as immigrants and thus could qualify for permanent residence. The government appealed to the Third Circuit, which reversed the District Court's decision. There, the Third Circuit said that the TPS does not "constitute an admission" of legal immigration status.
Borden v United States was a United States Supreme Court case involving the classification of prior convictions for "violent felony" in application of Armed Career Criminal Act (ACCA); the ACCA provides for enhanced sentencing for convicted criminals with three or more such felonies in their history. In a 5–4 decision in June 2021, the Supreme Court ruled that crimes resulting from reckless conduct should not be considered as a "violent felony" for the purposes of the ACCA.
Background.
The Armed Career Criminal Act (ACCA) passed in 1984 is a federal law that enables law enforcement to seek enhanced sentences for convicted criminals that have three or more violent felonies or serious drug offensives on their record. Past case law involving the ACCA has led to questions of what constitutes a violent felony to qualify under the ACCA.
Charles Borden Jr. was pulled over in a traffic stop in Tennessee in April 2017 and discovered to have a firearm in his vehicle. As he had a prior felony conviction on his record, he was charged with unlawful possession, which he pled guilty. Upon further evaluation of his record, the state found a prior conviction for reckless aggravated assault, along with two other violent felonies, and charged Borden under the ACCA, receiving a sentence of nine years and seven months.
Borden appealed his conviction to the United States District Court for the Eastern District of Tennessee, arguing that his reckless aggravated assault conviction should not be considered a violent crime under the ACCA and sought a reduced sentence. The District Court denied the appeal, ruling that the aggravated assault was a violent felony. The Sixth Circuit upheld the District Court's decision.
Supreme Court.
Borden petitioned the Supreme Court, asking whether a criminal act with a mens rea of recklessness should be considered as a violent felony under the ACCA. The Court granted certiorari for the case in March 2020. Oral argument was held on November 3, 2020.
The Court issued its opinion on June 10, 2021. In a 5–4 vote, the Court reversed the Sixth Circuit's decision and remanded the case for review. The plurality decision was written by Justice Elena Kagan and joined by Justices Stephen Breyer, Sonia Sotomayor, and Neil Gorsuch. Kagan wrote that crimes involving the mens rea of recklessness should not be categorized as "violent felonies" for purposes of the ACCA. Justice Clarence Thomas wrote a concurrence, joining only in the judgment of the case.
A dissenting opinion was written by Justice Brett Kavanaugh, and joined by Chief Justice John Roberts and Justices Samuel Alito and Amy Coney Barrett.
Terry v United States (2021) was a United States Supreme Court case dealing with retroactive changes to prison sentences for drug-possession crimes related to the Fair Sentencing Act of 2010, its retroactive nature established by the First Step Act of 2018. In a unanimous judgement, the Court ruled that while the First Step Act does allow for retroactive considerations of sentence reductions for drug-possession crimes prior to 2010, this only covers those that were sentenced under minimum sentencing requirements.
Background.
Prior to 2010, the United States had strict federal laws related to drug possession under 21 U.S.C. § 841, which established a three-tier penalty system depending on the among and type of drug, a response due to the crack epidemic of the 1980s. For crack cocaine, tier 1 crimes carried a ten-year mandatory minimum sentence for possessing more than 50 grams (1.8 oz), tier 2 crimes carried a five-year mandatory minimum sentence for more than 5 grams (0.18 oz), and tier 3 crimes did not have any mandatory sentence for amounts less than 5 g. Congress passed the Fair Sentencing Act in 2010 which altered the possession levels for crack cocaine to higher levels as to bring these in line with the possession levels established for powder cocaine. For example, the tier 2 possession level was increased to 28 grams (0.99 oz) of crack cocaine. Later, in 2018, the First Step Act was passed that, among other provisions, allowed those sentenced on drug-possession charges prior to the 2010 Fair Sentencing Act's altered levels to seek resentencing.
Tarahrick Terry had been charged with possession of 4 grams (0.14 oz) of crack cocaine in 2008, treated as a tier 3 violation, and was sentenced to 15 years in prison. Terry sought a resentencing hearing after the passage of the Fair Sentencing Act but was denied by both the United States District Court for the Southern District of Florida and on appeal at the Eleventh Circuit as his drug possession had been determined to be an act of recidivism. Following passage of the First Step Act, Terry again sought a resentencing hearing, arguing his possession fell under the retroactive considerations of this new act. Again, both the District Court and Eleventh Circuit ruled against this, stating that Terry's possession charge as a tier 3 act was not a covered crime under the First Step Act.
Fulton v City of Philadelphia (2021) was a United States Supreme Court case dealing with litigation over discrimination of local regulations based on the Free Exercise Clause and Establishment Clause of First Amendment to the United States Constitution. The specific case deals with a religious-backed foster care agency that was denied a new contract by the City of Philadelphia, Pennsylvania due to the agency's refusal to provide service to married same-sex couples on religious grounds.
In a unanimous judgment on June 17, 2021, the Court ruled that the city's refusal due to the agency's same-sex couple policy violated the Free Exercise Clause. The case was decided on narrow grounds outside of the Supreme Court's prior decision in Employment Division v Smith, which had previously ruled that neutral laws of general applicability could not be challenged for violating religious exemptions. Instead, in Fulton, the court ruled that services like foster care contracting were not public accommodations covered by Smith, and thus were subject to strict scrutiny review. Because the city allowed for exceptions to be made in its anti-discrimination policy for foster care certification, the Court deemed the city's policy to violate the foster case agency's free exercise of religious under Smith.
Background.
The Roman Catholic Archdiocese of Philadelphia runs the Catholic Social Services of the Archdiocese of Philadelphia (CSS), which has operated a foster care agency in Philadelphia for over 100 years. The foster care agency had been registered with the city up through 2018.
The Philadelphia Inquirer ran an article on March 13, 2018, which described the experience of a same-sex couple that went to an information session at Bethany Christian Service, which operated its own foster care service separate from CSS. At the session, the couple were told they would be wasting time because there was a policy for refusing to serve same-sex couples. In following up, the reporter discovered that CSS held a similar policy, and had spoken to the city's Department of Human Services, which oversaw regulating foster care services, to notify them of these issues. The Commissioner of Human Services for the city, Cynthia Figueroa, followed up on the report with both CSS and Bethany Christian Services to confirm its veracity towards discrimination against same-sex couples. Figueroa also reviewed the standard with other registered foster care agencies for the city, many also who were also run by religious organizations, but found none of the others had similar restrictions against same-sex couples. Within a few days of the article's publication, the city suspended CSS's contract; the Bethany Christian Service had been able to work a deal to accept foster care from same-sex couples to maintain theirs.
Nestlé USA Inc v Doe (2021) is a United States Supreme Court decision regarding the Alien Tort Statute (ATS), which provides federal courts jurisdiction over claims brought by foreign nationals for violations of international law. Consolidated with Cargill Inc v Doe, the case concerned a class-action lawsuit against Nestlé USA and Cargill for aiding and abetting child slavery in Côte d’Ivoire by purchasing from cocoa producers that utilize child slave labor from Mali. The plaintiffs, who were former slave laborers in the cocoa farms, brought their claim in U.S. district court under the ATS,
The U.S. District Court for the Central District of California dismissed the suit on the basis that corporations cannot be sued under the ATS, and that the plaintiffs failed to allege the elements of an aiding and abetting claim. The U.S. Court of Appeals for the Ninth Circuit reversed, holding that corporations are liable for aiding and abetting slavery, in part because norms against slavery are "universal and absolute" and thus provide a basis for an ATS claim against a corporation; however, it did not address the argument by the defendant corporations that the complaint sought an extraterritorial application of the ATS, which the U.S. Supreme Court had recently rejected in Kiobel v Royal Dutch Petroleum Co.
On remand, the district court again dismissed the claims, finding that the plaintiffs sought an impermissible extraterritorial application of the ATS. In the interim, the U.S. Supreme Court decided Jesner v Arab Bank, PLC, which held that foreign corporations cannot be sued under the ATS. The Ninth Circuit reversed, finding that the holding in Jesner does not disturb its prior holding as to the domestic defendants, Nestle USA, Inc., and Cargill, Inc., and that the specific domestic conduct alleged by the plaintiffs falls within the focus of the ATS and does not require extraterritorial application of that statute.
Background.
Six Malians, identified as John Doe I through VI, were trafficked into Côte d’Ivoire as children and enslaved on cocoa plantations. The children, aged 12-14, were kept in harsh living conditions at the plantations, and they were forced under threat of violence to cultivate cocoa for up to fourteen hours per day without pay. The children witnessed slaves who were caught trying to escape from the plantation being tortured by guards.
Most of the cocoa that the slaves cultivated on Côte d’Ivoire plantations was sold to U.S. companies such as the Nestlé and Cargill corporations and imported to U.S. markets. Nestlé and Cargill encouraged the use of child slave labor on Côte d’Ivoire plantations by supporting farmers through capital investments in equipment, training, and cash advances. They also facilitated child slavery by lobbying "against legislation intended to make the use of child slavery transparent to the public" and mislead consumers on their actions in the region. The corporations also sent representatives to inspect plantations. In return, Nestlé and Cargill get cheaper cocoa imports, increasing their profit margins.
History.
The case was initially filed in 2005 but dismissed by the District Court for the Central District of California in 2010. The Ninth Circuit remanded this decision, stating that the plaintiffs had standing to sue under the Alien Tort Statute—but the case was again dismissed by the district court.
In oral arguments, the Malians were represented by Paul L. Hoffman, while Nestlé and Cargill were represented by Neal Katyal.
California v Texas (2021) was a United States Supreme Court case that dealt with the constitutionality of the 2010 Affordable Care Act (ACA), colloquially known as Obamacare. It was the third such challenge to the ACA seen by the Supreme Court since its passage. The case in California followed after the passage of the Tax Cuts and Jobs Act of 2017 and the change to the tax penalty amount for Americans without required insurance that reduced the "individual mandate" to zero, effective for months after December 31, 2018. The District Court of the Northern District of Texas concluded that this individual mandate was a critical provision of the ACA and that, with a penalty amount equal to zero, some or all of the ACA was potentially unconstitutional as an improper use of Congress's taxation powers.
Under the Donald Trump administration, the federal government had declined to challenge the lower court ruling, leading California and several other states to intervene and appeal the ruling, which the Fifth Circuit Court of Appeals granted. The Court of Appeals for the Fifth Circuit upheld the ruling that the individual mandate was unconstitutional but determined that the mandate might be severable from the rest of the ACA. Both California and Texas petitioned review of the Fifth's decision to the Supreme Court; the Court consolidated both California v Texas and Texas v California under the same case.
In a 7–2 decision issued on June 17, 2021, the Supreme Court ruled that Texas and other states that initially challenged the individual mandate did not have standing, as they had not shown past or future injury related to the provision. The Supreme Court otherwise did not rule on the constitutionality of the individual mandate in this case.
Background.
The ACA (Obamacare) was passed in 2010 under Democratic leadership in both houses of Congress and signed by President Barack Obama. Among many of its provisions, it provided programs for states to provide free or low-cost health insurance to low-income residents through programs like Medicare and Medicaid. ACA encouraged all Americans to have health insurance and as part of this, created an income tax penalty for those that did not have health insurance, otherwise known as the "individual mandate". Passage of the ACA was controversial, and remained an issue that was divided along political lines, with Democrats seeing the law as promoting the public good and Republicans seeing it as a tax burden. The law had been challenged in courts multiple times, with the Supreme Court having seen two cases previously. Notably, in 2012, the Court ruled 5–4 in National Federation of Independent Business v Sebelius that the individual mandate was constitutional as a granted power of Congress under the Taxing and Spending Clause.
In 2016, the Republican Party held control of both the House and Senate and gained control of the Executive branch with the election of President Donald Trump. Trump had campaigned on the promise of replacing the ACA once in office, and repealing the law was one of the early targets of the Republicans, but early efforts failed by mid-2017 due to in-party disputes, specifically the deciding vote which was to come from Senator John McCain was denied the Republican Party due to the fact that a promised replacement plan was not forthcoming.
United States v Arthrex, Inc., (2021), was a United States Supreme Court case related to the Appointments Clause of the United States Constitution as it related to patent judges on the Patent Trial and Appeal Board (PTAB). In a complex decision, the Court ruled that these judges were considered "primary officers" under the Appointments Clause, normally subject to appointment through the US President and the US Senate, but to remedy the matter, the Court ruled that the constitutional issue is resolved by allowing the PTAB decisions to be subject to review by the appropriately-appointed Director of the Patent Office.
Background.
The Leahy-Smith America Invents Act was passed by Congress in 2012 that significantly overhauled the United States patent system. Among features of the law, it enabled a new inter partes review of patents that could be initiated by nearly any member of the public. As this potentially would create more litigation within the United States Patent and Trademark Office, itself a division of the Department of Commerce, the Act established the Patent Trial and Appeal Board (PTAB) which included administrative patent judges (APJs) appointed through the Commerce Secretary. An inter partes review of a patent is presented to three of the PTAB judges who make a final decision to keep or invalidate some or all of the patent. Any further challenge beyond this proceeds to the United States Court of Appeals for the Federal Circuit.
In the specific case, Arthrex, Inc., a manufacturer of medical devices, had previously received a patent for a surgical device. They entered into a patent dispute with Smith & Nephew, Inc., and ArthroCare Corp., claiming the latter groups were infringing on their patent. The case moved into the PTAB, which found that Arthrex's patent was invalid. Arthrex appealed to the Federal Circuit, raising a question related to the constitutionality of the administrative judges on the PTAB. They argued that under the Appointments Clause, since the APJs were considered principal officers of the patent office, they were required to be appointed through the President and confirmed by the Senate. The Federal Circuit judges agreed with Arthrex's position, vacated the PTAB's ruling, ruled that the APJs' tenure must be changed to reflect this stance, and remanded the case back to the PTAB for a rehearing.
National Collegiate Athletic Association v Alston, (2021), was a United States Supreme Court case concerning the compensation of collegiate athletes within the National Collegiate Athletic Association (NCAA). It followed from a previous case, O'Bannon v NCAA, in which it was found that the NCAA was profiting from the namesake and likenesses of college athletes. The case dealt with the NCAA's restrictions on providing college athletes with non-cash compensation for academic-related purposes, such as computers and internships, which the NCAA maintained was to prevent the appearance that the student athletes were being paid to play or treated as professional athletes. Lower courts had ruled that these restrictions were in violation of antitrust law, which the Supreme Court affirmed in a unanimous ruling in June 2021.
Background.
The National Collegiate Athletic Association (NCAA) oversees rules related to student athletes that play in their athletics programs. These athletic programs are generally seen as revenue generation for the individual school, particularly for the popular college football and basketball programs which are widely televised and marketed. Because the school benefits from the performance of the players, the NCAA had established rules to limit the type of compensation that the school could give to student athletes as to distinguish college athletics from professional sports. This had included disallowing "non-cash education-related benefits" such as scholarships and internships so that there is no apparent "pay to play" aspect.
In 2014, a class-action lawsuit O'Bannon v NCAA was filed in the United States District Court for the Northern District of California. The plaintiffs, numerous college athletes, asserted that the NCAA and its colleges were profiting off their names and likeness in works related to the college athletic programs such as in video games but none of the athletes were receiving any compensation for that pay, in violation of the Sherman Act and antitrust law. District Court judge Claudia Ann Wilken found for the plaintiffs, a decision upheld in part by the Ninth Circuit. In review of the Ninth Circuit's decision, the NCAA agreed to allow student athletes to receive full scholarships for academics. Subsequently, the NCAA had started review of its policies related to how to compensate players for names and likenesses, as well as the impact of California's Fair Pay to Play Act passed in October 2019 and due for enforcement in 2023 which would allow students to have more control on their names and likenesses for sponsorships and endorsements beyond the NCAA's control.
Goldman Sachs Group, Inc v Arkansas Teacher Retirement System, (2021), was a 2021 decision of the Supreme Court of the United States related to securities fraud class actions.
Background.
A group of investors sued Goldman Sachs after the financial crisis of 2007–2008 to recover up to $13 billion in losses. In 2020, a panel of the United States Court of Appeals for the Second Circuit allowed the class action to proceed, 2–1. Judge Richard J Sullivan dissented.
Decision.
The Supreme Court issued its decision in June 2021, vacating the court of appeals' judgment and remanding it for further proceedings. A unanimous court found that the presumption of class-wide reliance established in Basic Inc v Levinson required the defendant's statements to be more than just generic guarantees. An 8–1 court, with Justice Sonia Sotomayor dissenting, found that the lower court had not adequately followed this framework, and remanded for further proceedings. A 6–3 court, with Justice Neil Gorsuch dissenting, joined by Justices Clarence Thomas and Samuel Alito, held that defendants have the burden of proof in rebutting the presumption of reliance.
Cedar Point Nursery v Hassid, (2021), was a United States Supreme Court case involving eminent domain and labor relations. In its decision, the Court held that a regulation made pursuant to the California Agricultural Labor Relations Act that required agricultural employers to allow labor organizers to regularly access their property for the purposes of union recruitment constituted a per se taking under the Fifth Amendment. Consequently, the regulation may not be enforced unless “just compensation” is provided to the employers.
Background.
In 1975, California's legislature passed the California Agricultural Labor Relations Act to help unions gain access to agriculture workers in the state, which at that time tended to be migratory with the seasons and difficult to contact otherwise. The Act allowed union members, with prior notice to the state's Agricultural Labor Relations Board but without consent of the property owner, to come onto agricultural properties up to three times a day, one hour at a time, up to 120 days during a year, to perform unionization activities.
The dispute arises out of a 2015 effort by agricultural union organizers to persuade workers at a Dorris, California strawberry nursery and at a Central Valley fruit packing operation to join a collective bargaining organization. The visit to the northern California farm was conducted under the 1975 Act. The nursery owner sued for a declaratory judgment and an injunction barring future visits by labor organizers, arguing that the regulation results in a physical taking of property and an unreasonable seizure under the U.S. Constitution.
Both the U.S. District Court for the Northern District of California and the U.S. Court of Appeals for the Ninth Circuit rejected the request for an injunction and the nurseries and fruit packer's arguments that state authorization of union organizer visits under the state regulation is a taking of property or an unreasonable seizure. The 2-1 opinion by the appeals court was written by Judge Richard Paez and joined by Judge William A Fletcher. Judge Edward Leavy dissented. Judge Sandra Segal Ikuta wrote a dissent from the denial of rehearing en banc that was joined by 7 other judges.
The California Supreme Court had previously rejected constitutional attacks on the regulation in 1976.
Mahanoy Area School District v B L (2021), was a United States Supreme Court case involving the ability of schools to regulate student speech made off-campus, such as speech made on social media. The case challenged past interpretation of Tinker v Des Moines Independent Community School District and Bethel School District v Fraser, previous Supreme Court decisions related to student speech which may be disruptive to the educational environment, in light of online communications.
The case centered on Brandi Levy, identified as B L in pleadings, a student at Mahanoy Area High School in Mahanoy City, Pennsylvania, who posted an angry, profane Snapchat message from an off-campus location after she failed to make the school's varsity cheerleading squad. Though sent to a private circle of friends and deleted later, the message was shown to school staff, and B L was suspended from cheerleading the next year under the school's policy relating to social media.
B L's parents filed suit on her behalf in the Middle District of Pennsylvania, arguing that the school district had unconstitutionally punished her for speech made completely outside of the school that did not pose a risk of disruption. The District Court held in B L's favor and that the school's policy was beyond its disciplinary reach under Tinker. On appeal to the Third Circuit, a three-judge panel unanimously affirmed this ruling, but the majority opinion stated that Tinker did not extend to any off-campus speech, while a dissenting opinion believed this conclusion was overly broad. The Third Circuit's decision created a circuit split for the Supreme Court to resolve.
The Supreme Court affirmed the Third Circuit's ruling in regard to B L's case in an 8–1 decision in June 2021, though overruled the Third Circuit's opinion related to off-campus speech relative to Tinker. The Court affirmed that through Tinker, schools may have a valid interest to regulate student speech off-campus that is disruptive, but did not define when this regulation can occur, leaving this open for lower courts in future litigation. The Court ruled specifically for B L that the school's interests to prevent disruption under Tinker were not sufficient to overcome her First Amendment rights.
Collins v Yellen, (2021), was a United States Supreme Court case dealing with the structure of the Federal Housing Finance Agency (FHFA). The case follows on the Court's prior ruling in Seila Law LLC v Consumer Financial Protection Bureau, which found that the establishing structure of the Consumer Financial Protection Bureau (CFPB), with a single director who could only be removed from office "for cause", violated the separation of powers; the FHFA shares a similar structure as the CFPB. The case extends the legal challenge to the federal takeover of Fannie Mae and Freddie Mac in 2008.
In a two-part decision, the Supreme Court ruled that the restriction on removal of the FHFA director by the President was unconstitutional in light of Seila Law, and secondly, dismissed the lawsuit brought against the FHFA by shareholders of Fannie Mae and Freddie Mac as the takeover of these firms was an established power of the agency under terms of the Housing and Economic Recovery Act of 2008.
Background.
Part of the contributing factors to the subprime mortgage crisis from 2007 to 2010 was the role of Fannie Mae and Freddie Mac, for-profit government sponsored enterprises (GSE) that purchase mortgages and backed almost half of the mortgages in the United States. Analysis had found that the two GSEs had purchased a number of risky mortgages, those offered at below the prime interest rate as to encourage home ownership, during the housing market peak in 2005 and 2006 and represented a large risk should they fail. At the start of the crisis, the rationalization of the number of these low-interest mortgages disrupted the banking system, causing some larger banks to go into bankruptcy or seek means to avoid this, which disrupted the credit system and further exacerbated the crisis and caused a recession.
Congress passed the Housing and Economic Recovery Act of 2008 in July of that year to try to stave off the effects of the recession. Among the law's goals included the formation of the Federal Housing Finance Agency (FHFA), merging the existing Federal Housing Finance Board (FHFB) and Office of Federal Housing Enterprise Oversight (OFHEO). The new FHFA was run by a single Director, with James B. Lockhart III, the prior Director of OFHEO, named to the initial position. In September 2008, Lockhart issued an order to bring in Fannie Mae and Freddie Mac under FHFA's authority for the purposes of stabilizing both GSEs using funds allocated by Congress as a means to alleviate the mortgage crisis.
As part of this takeover, once the mortgage crisis was subdued in 2012, the FHFA routed the ongoing profits earned by Fannie Mae and Freddie Mac to the Treasury Department on the basis that these funds were needed to offset the taxpayers' costs of the government's intervention to resolve the crisis. The decision also prevents both GSEs from using Treasury funds to pay their shareholders. Shareholders of both companies challenged the government's actions, stating that these decisions prevents the company from building capital and is excessive governmental overreach.
Lange v California, (2021), was a United States Supreme Court case involving the exigent circumstances requirement related to the Fourth Amendment to the United States Constitution. The Court ruled unanimously that the warrantless entry into a home by police in pursuit of a misdemeanant is not unequivocally justified.
Background.
In October 2016, a California highway patrol officer witnessed Arthur Lange driving while playing loud music and honking his horn. Believing Lange to be in violation of California traffic law, the officer attempted to perform a traffic stop. Lange drove to his garage and then closed the garage but the officer, who had followed him to his home, entered the garage and began to question Lange. After smelling alcohol on his breath and conducting a field sobriety test, the officer arrested Lange and charged him with driving under the influence and a noise infraction.
Lange attempted to argue at trial that the officer's entry into his garage without a warrant had violated his Fourth Amendment rights and therefore evidence related to the case had to be suppressed. The prosecution argued that under the "hot pursuit doctrine" the officer had probable cause to enter the garage because Lange had committed a misdemeanor when he failed to stop for the officer. The court subsequently denied Lange's motion to suppress the evidence. As a result, Lange's driver's license was suspended for a period of one year.
Yellen v Confederated Tribes of the Chehalis Reservation, (2021), was a United States Supreme Court case dealing with the classification of Alaska Native corporations (ANCs) for purposes of receiving funds set-aside for tribal governments under the CARES Act. In a 6–3 decision issued in June 2021, the Court ruled that ANCs were considered to be "Indian tribes" and were eligible to receive the set-aside funds.
Background.
Twelve Alaska Native corporations (ANCs) were established in the 1971 Alaska Native Claims Settlement Act as for-profit corporations to operate businesses and services, often in the areas of oil and gas industry, to generate revenue that provides benefits to the Alaska Natives in the territories that they serve. This arrangement is unique to Alaska compared to native American tribes in the lower 48 states, where they operating their own tribal governments in recognized Indian reservations within federal law. Later, the Indian Self-Determination and Education Assistance Act of 1975 (ISDA) assured that both native American tribal governments and ANCs were given the self-autonomy to operate as governments for their respective peoples.
With the impact of the COVID-19 pandemic, the U.S. government passed the Coronavirus Aid, Relief, and Economic Security, or CARES Act in March 2020. The bill provided $2.2 trillion in relief funding to businesses, of which $8 billion was earmarked for "tribal governments". The Treasury Department, in interpreting the law, opted to set aside about $500 million of the $8 billion earmarked for ANCs.
The Treasury's decision was challenged separately by three Native tribes: the Navajo Nation, the Confederated Tribes of the Chehalis Reservation and the Cheyenne River Sioux Tribe. They asserted that the ANCs were not officially recognized as tribal governments under the language of ISDA, and thus were ineligible to receive any of the CARES funds. The Native tribes expressed concern that the amount of funds available to them would be diluted if the ANC set-aside were allowed to stand. The three suits were consolidated at the United States District Court for the District of Columbia. The district court ruled in favor of the Treasury Department, in that the ANCs could be considered tribal governments and eligible to receive CARES Act funds. The tribes appealed to the United States Court of Appeals for the District of Columbia Circuit, which reversed the District Court's ruling. The Circuit Court ruled that as no ANC is federally recognized, compared to the tribal governments, they fail to qualify for the CARES Act funding.
HollyFrontier Cheyenne Refining, LLC v Renewable Fuels Association, (2021), was a United States Supreme Court case dealing with exemptions from blending requirements for small refineries set by the Renewable Fuel Standard program. The case dealt with the statutory interpretation of the congressional language for extending the exemption, if this allowed a lapse in the exemption or not. In a 6–3 decision, the Supreme Court ruled that by the majority's interpretation of the law, the congressional law did allow for refineries to seek extensions after their exemption period had lapsed.
Background.
Congress established the Renewable Fuel Standard program as part of the Energy Policy Act of 2005 to promotion the production of renewable fuels. The program, managed by the Environmental Protection Agency (EPA), requires oil refineries to blend in renewable fuels, such as ethanol, into their products produced from fossil fuels. The amount to blend increased each year. As the program progressed, Congress recognized that the blending requirements created potentially disproportionate economic hardships for smaller refineries, those that produced less than 75,000 barrels per year, and created an temporary exemption in the Energy Independence and Security Act of 2007 for smaller refineries lasting through 2010. Congress instructed the Department of Energy (DOE) to study if there were disproportionate impacts of this blending requirements on the smaller refineries from which then the EPA could then grant extensions to the original exemption for smaller refiners. DOE did conclude that such hardships did exist, leading the EPA to begin issuing extensions of the original exemption, requiring the refinery to annually reapply for further extensions.
The case at hand involves three small refineries who had either failed to file for an extension in 2011 or failed to renew their extension with the EPA: HollyFrontier Woods Cross Refining LLC, HollyFrontier Cheyenne Refining LLC, and Wynnewood Refining Company. After their exemption period has expired, the three refineries separately sought a new extension to the exemption from the EPA, which the EPA granted. As more exemptions were being passed during the Trump administration, the EPA's decisions to allow for these three refineries to have disrupted extended exemptions was challenged in court by several renewable fuels associations. The associations argued that the congressional language around the Renewable Fuels Program meant that once a small refinery's exemption extension had expired, the exemption could no longer be prolonged. The refineries argued that the language of the law suggested an extension may be applied for "at any time” and did not require a continuous exemption period. The consolidated suit was brought directly to the Tenth Circuit, where the court overturned the EPA's decision, stating the agency exceeded its authority, and agreed with the renewable fuel associations' assertion that by interpretation of "extension", there had to be an exemption to extend in place already.
TransUnion LLC v Ramirez, (2021), was a United States Supreme Court case dealing with standing under Article III of the Constitution related to class-action suits against private defendants. In a 5–4 decision, the Court ruled that only those that can show concrete harm have standing to seek damages against private defendants.
Background.
Sergio Ramirez had been in the process of purchasing a new car in 2011, and as typically done, had his credit rating reviewed by the dealership. Using of the credit rating agencies, TransUnion, his name was checked not only against financial databases but alongside a list maintained by the federal Treasury Department's Office of Foreign Assets Control (OFAC) of known terrorists and other known criminals that would be illegal to conduct business with. As his name matched one of those on the OFAC's list - but otherwise had no relation to the known criminal - the dealership told him this direct in front of family members and denied selling him the car. Ramirez queried TransUnion for copies of his credit report in the following days, which still indicated that Ramirez was considered a potential criminal. Eventually, TransUnion distinguished Ramirez's credit record as unconnected to the OFAC list.
Ramirez filed suit against TransUnion in the United States District Court for the Northern District of California in 2012, asserting that TransUnion's means of using simple name matching to the OFAC list, they were violating the Fair Credit Reporting Act, which was created to allow victims of false credit reporting to seek remedies. Ramirez sought and obtained class-action status for his suit, with over 8,000 other individuals that similarly had been matched against the OFAC list due to sharing of the same name and whom had been notified by TransUnion. A jury trial awarded the class damages of $60 million in 2016, though on appeal to the Ninth Circuit in 2020, the damages were reduced to $40 million. During both the jury trial and at appeal, TransUnion objected to the validity of the class-action suit under the Fair Credit Reporting Act, claiming that the class members had not shown demonstrable harm and thus lacked Article III standing to bring suit. However, the courts rejected TransUnion's argument.
PennEast Pipeline Co. v New Jersey was a United States Supreme Court case dealing with the sovereign immunity of states to delegated powers of eminent domain granted to private companies from federal agencies, in the specific case, acquiring property for the right-of-way to build a natural gas pipeline. The Court, in a 5–4 decision issued in June 2021, ruled that states, by nature of ratifying the Constitution, gave up their ability to exercise sovereign immunity from the federal government or from those parties whom they have delegated that authority.
Background.
The PennEast Pipeline was proposed by the PennEast Pipeline Co., a consortium of five regional energy companies, to move up 1 million cubic feet (28,000 m3) of natural gas from the Marcellus Shale formation in Pennsylvania to New Jersey over a distance of about 115 miles. As part of the approvals and permitting process, the consortium got approval from the Federal Energy Regulatory Commission (FERC) for their proposed pipeline route in 2018. FERC's approval included the ability for PennEast to use eminent domain to obtain parcels of property along the route under terms of the Natural Gas Act of 1938 and its 1947 amendment to 15 U.S.C. §717f(e). This approval was met with numerous criticisms by New Jersey and other respondents, and a separate suit challenging the FERC's order was raised at the United States Court of Appeals for the District of Columbia Circuit.
As the case challenging the FERC order proceeded, PennEast began legal action to use eminent domain power to acquire the land for the pipeline. About forty parcels of land were owned by the state of New Jersey and the New Jersey Conservation Foundation, and PennEast turned to court action to assert eminent domain. New Jersey requested these suits be dismissed on the basis of sovereign immunity, that the state should be immune from such a lawsuit by a private company. The United States District Court for the District of New Jersey denied the motion and allowed PennEast's suits to proceed. New Jersey appealed to the Third Circuit Court of Appeals, which reversed the District Court's ruling. The Third Circuit ruled that on the basis of the Eleventh Amendment to the United States Constitution, states did enjoy sovereign immunity from private lawsuits, blocking the process of PennEast's suits.
Minerva Surgical, Inc. v Hologic, Inc was a United States Supreme Court case dealing with the principle of assignor estoppel and its application. The Supreme Court reaffirmed the principle of assignor estoppel, however with the exception that the doctrine is only applied when assignors assertions are actually consistent with previous representations as to the patent. The majority decision was written by Justice Kagan, with Justice Alito and Justice Barrett filing separate dissenting opinions.
Background.
Csaba Truckai founded the company NovaCept, which invented the NovaSure medical system, which detects perforations in the uterus through the usage of Carbon Dioxide gas. NovaCept was acquired by Cytyc Corporation in 2004, which was then acquired by Hologic in 2007. Hologic received U.S. Patents 6,872,183 and 9,095,348 in 2005 and 2015 respectively. Truckai left NovaCept to found his own company, Minerva, Inc. and received permission to commercially distribute an Endometrial Ablation System.
Hologic, Inc. sued Minerva, Inc. for violations of U.S. Patents 6,872,183 and 9,095,348, both relating to the procedure of endometrial ablation, for the treatment of menorrhagia. Minerva argued that the patents were invalid in the first place, and challenged the patentability of both patents in the U.S. Patent Office. Hologic moved for summary judgement arguing the principle of assignor estoppel, which was granted. The jury awarded $4.7 million in damages to Hologic. Both Minerva and Hologic appealed for differing reasons. On Appeal to the Federal circuit, Minerva asked the court to "abandon the doctrine” of assignor estoppel on the basis that the doctrine is invalidated due to the Supreme Court abolishing the doctrine of licensee estoppel in Lear, Inc. v Adkins, (1969), although the Federal Circuit Court rejected this argument. Minerva Surgical, Inc. filed a petition for a writ of certiorari on September 30, 2020.
Assignor Estoppel.
Assignor estoppel is a legal doctrine that states that a claim of invalidity cannot be taken by a person who sells a patent (assignor). The doctrine was first recognized in the United States in Westinghouse Elec & Mfg. Co. v Formica Insulation Co., (1924.)
Judgement.
In a 5-4 decision, the Supreme Court reaffirmed the principle of assignor estoppel, and rejected the argument of Minerva that the doctrine was repealed through the Patent Act of 1952. Writing for the majority, Justice Kagan wrote that " applies when, but only when, the assignor’s claim of invalidity contradicts explicit or implicit representations he made in assigning the patent."
Justice Barrett argued in the principal dissent that the Patent Act of 1952 precludes the principle of Assignor estoppel. Justice Alito, who also wrote a dissenting opinion, argued that neither the principal dissent nor the majority opinion are valid as neither answered the question as to whether Westinghouse Elec. & Mfg. Co. v Formica Insulation Co., (1924) should be upheld or overruled.
Americans for Prosperity Foundation v Bonta was a United States Supreme Court case dealing with the disclosure of donors to non-profit organizations. The case challenges California's requirement that requires non-profit organizations to disclose the identity of their donors in the state tax returns. The case was consolidated with Thomas More Law Center v Bonta. In July 2021, the Supreme Court ruled in a 6–3 decision that California's requirement burdened the donors' First Amendment rights and was not narrowly tailored, and thus invalid.
Brnovich v Democratic National Committee, (2021), was a United States Supreme Court case related to voting rights established by the Voting Rights Act of 1965 (VRA), and specifically the applicability of Section 2's general provision barring discrimination against minorities in state and local election laws in the wake of the United States Supreme Court decision in Shelby County v Holder in 2013 which removed the preclearance requirements for election laws for certain states that had been set by Sections 4(b) and 5. The case deals with two of Arizona's election policies, including one law targeting ballot harvesting that was passed after Shelby County prior to the 2016 elections. The Supreme Court ruled in a 6–3 decision in July 2021 that neither of Arizona's election policies violated the VRA nor had a racially discriminatory purpose.
In re: Don McGahn (also: Committee on the Judiciary, United States House of Representatives v. Donald F. McGahn II; U.S. House Judiciary Committee v. Donald F. McGahn) is a U.S. constitutional case lawsuit (1:19-cv-02379) filed in the United States District Court for the District of Columbia by the House Judiciary Committee to compel the testimony of former White House Counsel Donald F. McGahn, Jr. under subpoena. McGahn was put under subpoena to testify regarding his knowledge of the Russia investigation and Mueller Report and whether President Donald Trump's actions could constitute obstruction of justice. The case gained importance as the House launched impeachment proceedings against Trump regarding the Trump–Ukraine scandal.
In April 2019, the House Judiciary Committee subpoenaed McGahn to testify before Congress about potential obstruction of justice on the part of the Trump administration. The administration directed McGahn to ignore the subpoena, claiming that he was "absolutely immune" from compelled congressional testimony. In August 2019, the Judiciary Committee sued McGahn to compel his testimony. On November 25, U.S. District Court Judge Ketanji Brown Jackson ruled that McGahn must testify, declaring that "no one is above the law," but allowed McGahn to invoke executive privilege on certain questions. Jackson's ruling said that the Justice Department's claim to "unreviewable absolute testimonial immunity" is "baseless, and as such, cannot be sustained". The ruling is laced with references to and quotes from the Founding Fathers of the United States and the Constitution's Framers.
The case was appealed by the Department of Justice (DOJ), representing Don McGahn, and on November 26, the DOJ asked Jackson to put a temporary stay on her order so they could appeal it. The Justice Department requested a second stay pending an appeal of the ruling, but Judge Jackson rejected that request on December 2, calling the DOJ's assertion that the Judiciary Committee would not be harmed by a stay "disingenuous". In August 2020, the full US Court of Appeals for the District of Columbia Circuit ruled 7-2 that the House of Representatives could sue to subpoena McGahn.
Ruling.
On November 25, 2019, U.S. District Court Judge Ketanji Brown Jackson ruled that McGahn must testify, declaring that "presidents are not kings" and "no one is above the law." Jackson's 118-page ruling allowed McGahn to invoke executive privilege on certain questions, but not defy the subpoena.
Sharp v Murphy was a Supreme Court of the United States case of whether Congress disestablished the Muscogee (Creek) Nation reservation. After holding the case from the 2018 term, the case was decided on July 9, 2020, in a per curiam decision following McGirt v Oklahoma that, for the purposes of the Major Crimes Act, the reservations were never disestablished and remained Native American country.
In 1866, Congress established reservation boundaries for the Muscogee (Creek), Cherokee, Chickasaw, Choctaw, and Seminole Nations. The Muscogee (Creek) Nation boundaries composes three million acres in Eastern Oklahoma, including most of the city of Tulsa. The boundaries for all five nations consist of over 19 million acres and nearly the entire eastern half of Oklahoma. In 1907, Congress admitted Oklahoma to the Union as the 46th state and federal territorial courts immediately transferred all non-federal cases involving Native Americans to state courts. However, in the process, it has been found that Congress never officially disestablished the tribal reservations, a requirement for a tribal reservation to lose that status as demanded under Solem v Bartlett (1984).
The situation arose following the appeal of a convicted murderer, Patrick Murphy, a member of the Muscogee-Creek tribe, with his crime taking place within the boundaries of Muscogee-Creek reservation as delimited by Congress in 1866. The appeal addressed whether the federal territorial courts had congressional authorization to make this transfer, as if the lands were still a tribal reservation, Murphy's crime would become subject to federal jurisdiction rather than Oklahoma. Although this case is specific to the Muscogee (Creek) Nation, the Court's decision is likely to also apply to reservations of the Cherokee, Choctaw, Chickasaw, and Seminole Nations because all five tribes have similar histories within the state of Oklahoma.
The case was first heard by the Supreme Court in its 2018-2019 term; Justice Neil Gorsuch recused himself due to having participated as a federal appellate judge when the case was heard in lower courts, which created a potential deadlock between the remaining eight Justices. The Supreme Court announced at the end of the term that it would hold additional oral arguments during the 2019 term. It also heard a second case, McGirt v Oklahoma, in May 2020 involving similar matters and which Justice Gorsuch had no prior conflict with.
SUPREME COURT OF THE UNITED STATES
_________________
No. 20A8
_________________
WILLIAM P. BARR, ATTORNEY GENERAL, ET AL. v. DANIEL LEWIS LEE, ET AL.
ON APPLICATION FOR STAY OR VACATUR
[July 14, 2020]
PER CURIAM.
The application for stay or vacatur presented to THE
CHIEF JUSTICEand by him referred to the Court is granted. The District Court’s July 13, 2020 order granting a preliminary injunction is vacated.
The plaintiffs in this case are all federal prisoners who have been sentenced to death for murdering children. The plaintiffs committed their crimes decades ago and have long exhausted all avenues for direct and collateral review. The first of their executions was scheduled to take place this afternoon, with others to follow this week and next month. To carry out these sentences, the Federal Government plans to use a single drug—pentobarbital sodium—that “is widely conceded to be able to render a person fully insensate” and “does not carry the risks” of pain that some have associated with other lethal injection protocols. Zagorski v. Parker, 586 U. S. ___, ___ (2018) (Sotomayor, J., dissenting from denial of application for stay and denial of certiorari) (slip op., at 2).
Hours before the first execution was set to take place, the District Court preliminarily enjoined all four executions on the ground that the use of pentobarbital likely constitutes cruel and unusual punishment prohibited by the Eighth Amendment. Vacatur of that injunction is appropriate because, among other reasons, the plaintiffs have not established that they are likely to succeed on the merits of their
Eighth Amendment claim. That claim faces an exceedingly high bar. “This Court has yet to hold that a State’s method of execution qualifies as cruel and unusual.” Bucklew v. Precythe, 587 U. S. ___, ___ (2019) (slip op., at 12). For good reason—“[f]ar from seeking to superadd terror, pain, or disgrace to their executions, the States have often sought more nearly the opposite,” developing new methods, such as lethal injection, thought to be less painful and more humane than traditional methods, like hanging, that have been uniformly regarded as constitutional for centuries. Ibid. The Federal Government followed this trend by selecting a lethal injection protocol—single-dose pentobarbital—that has become a mainstay of state executions. Pentobarbital:
• Has been adopted by five of the small number of States that currently implement the death penalty.
• Has been used to carry out over 100 executions, without incident.
• Has been repeatedly invoked by prisoners as a less painful and risky alternativeto the lethal injection protocols of other jurisdictions.
• Was upheld by this Court last year, as applied to a prisoner with a unique medical condition that could only have increased any baseline risk of pain associated with pentobarbital as a general matter. See Bucklew, 587 U. S. ___.
• Has been upheld by numerous Courts of Appeals against Eighth Amendment challenges similar to the one presented here. See, e.g., Whitaker v. Collier, 862 F. 3d 490 (CA5 2017); Zink v. Lombardi, 783 F. 3d 1089 (CA8 2015); Gissendaner v. Commissioner, 779 F. 3d 1275 (CA11 2015).
McGirt v Oklahoma, was a landmark United States Supreme Court case which ruled that, as pertaining to the Major Crimes Act, much of the eastern portion of the state of Oklahoma remains as Native American lands of the prior Indian reservations of the Five Civilized Tribes, never disestablished by Congress as part of the Oklahoma Enabling Act of 1906. McGirt was related to Sharp v Murphy, heard in the 2018–19 term on the same question but which was believed to be deadlocked due to Justice Neil Gorsuch's recusal due to having prior judicial oversight of the case. Sharp was decided per curiam alongside McGirt.
Background.
Prior to its statehood in 1907, about half of the land in Oklahoma in the east, including the Tulsa metro area today, had belonged to the Five Civilized Tribes. There had been several decades of warfare and conflict during the 19th century over these lands between the Native Americans and the United States, including the Trail of Tears. By 1906, the United States Congress passed the Oklahoma Enabling Act which had been taken to disestablish the reservations, and enabling Oklahoma's statehood. The former reservation lands, those of the Five Civilized Tribes as well as the other tribes in the state, were allocated into areas by tribe that were given suzerainty governing rights to the tribe to handle internal matters for Native Americans within the boundaries, but otherwise having the state retain jurisdiction for non-Native Americans and for all other purposes such as law enforcement and prosecution.
In Sharp v Murphy, Patrick Murphy, a descendant of the Native Americans, admitted to committing murder in the state of Oklahoma, and was subsequently tried by the state courts around 2015. During these trials, Murphy argued that the language of the Oklahoma Enabling Act did not specify that the Native American reservations were disestablished, and because he had committed the murder within the Muscogee reservation territory, that his crime was subject to federal jurisdiction and not state under the Major Crimes Act. This argument was rejected by the state and on its first appeal within the federal courts, but at the Tenth Circuit in 2017, the court found in favor of Murphy's argument that the Enabling Act did fail to disestablish the territories, and thus Murphy should have been prosecuted by the federal courts. The state petitioned to the Supreme Court in 2018, which accepted to hear the case. However, as Justice Neil Gorsuch was part of the Tenth Circuit panel that heard the case on appeal, he recused himself from all hearings on the case. With only eight Justices hearing the case, the case remained unresolved at the end the of 2018–2019 term; the Court had stated plans to hold another hearing on the case in the 2019–20 term but had not set a date. Many court analysts believed the case to be deadlocked due to Gorsuch's recusal.
Patent and Trademark Office v. Booking.com B. V., 591 U.S. ___ (2020), was a United States Supreme Court case dealing with the trademark ability of a generic terms appended with a top-level domain (TLD) specifier (in this case "Booking.com"). The Court ruled that such names can be trademarked unless the existing combination of term and TLD is considered to have a generic meaning to consumers
Trump v. Mazars USA, LLP, 591 U.S. ___ (2020) was a Supreme Court of the United States case involving the United States House of Representatives subpoenas to obtain the tax returns of President Donald Trump, which Trump has litigated to prevent but which had been cleared by the United States Court of Appeals for the District of Columbia Circuit. In a 7–2 decision issued in July 2020, the Supreme Court vacated the Circuit Court's decision, asserting that the court had not properly assessed the separation of powers between Congress and the President, and remanded the case for review with a set of considerations to evaluate the worthiness of the subpoena request.
Babb v. Wilkie, No. 18-882, , 589 U.S. ___ (2020), is a case of the United States Supreme Court in which the justices considered the scope of protections for federal employees in the Age Discrimination in Employment Act of 1967. Specifically, the Court ruled that plaintiffs only need to prove that age was a motivating factor in the decision in order to sue. However, establishing but for causation is still necessary in determining the appropriate remedy. If a plaintiff can establish that the age was the determining factor in the employment outcome, they may be entitled to compensatory damages or other relief relating to the end result of the employment decision.