15 Case Summaries for AP Gov’t & Politics

15 Case Summaries for

AP Gov't & Politics
Contents
Baker v. Carr (1962) ............................................................................................................................................ 2
Brown v. Board of Education of Topeka (1954) ..................................................................................................... 7
Citizens United v. FEC (2010) ..........................................................................................................................12
Engel v. Vitale (1962) ........................................................................................................................................18
Gideon v. Wainwright (1963) ..............................................................................................................................23
Marbury v. Madison (1803) ................................................................................................................................27
McCulloch v. Maryland (1819)............................................................................................................................31
McDonald v. City of Chicago (2010) ...................................................................................................................35
New York Times Co. v. United States (1971) .....................................................................................................40
Roe v. Wade (1973) ............................................................................................................................................46
Schenck v. United States (1919) ..........................................................................................................................52
Shaw v. Reno (1993) ...........................................................................................................................................56
Tinker v. Des Moines Independent Community School District (1969) .................................................................61
United States v. Lopez (1995) .............................................................................................................................65
Wisconsin v. Yoder (1972)...................................................................................................................................69

© 2018 Street Law, Inc. Last updated: 08/23/2021

 Street Law Case Summary

Baker v. Carr (1962)

Argued: April 19–21, 1961
Re-argued: October 9, 1961
Decided: March 26, 1962

Background
In the United States, each state is responsible for determining its legislative districts. For many
decades states drew districts however they wanted. By the 1950s and 1960s, questions arose about
whether the states’ division of voting districts was fair. Many states had not changed their district
lines in decades. During that time many people moved from rural areas to cities. As a result, a
significant number of legislative districts became uneven—for example, a rural district with 500
people and an urban district with 5,000 people would each have only one representative in the state
legislature. Some voters filed lawsuits to address the inequities, but federal courts deferred to state
laws and would not hear these cases.
Federal courts did not hear these cases because they were thought to be “political” matters. Courts
were reluctant to interfere when another branch of government (i.e., the executive or legislative)
decided on an issue that was assigned to it by the Constitution. For example, if the president
negotiated a treaty with another country (a power granted to the president by the Constitution), the
courts would generally not decide a case questioning the legality of the treaty. The power of state
legislatures to create voting districts was one of those “political questions” that the courts
traditionally had avoided.
This is a case about whether federal courts could rule on the way states draw their state boundaries
for the purpose of electing members of the state legislature.

Facts
In the late 1950s, Tennessee was still using boundaries between electoral districts that had been
determined by the 1900 census. Each of Tennessee’s 95 counties elected one member of the state’s
General Assembly. The problem with this plan was that the population of the state changed
substantially between 1901 and 1950. The distribution of the population had changed too. Many
more people lived in Memphis (and its district—Shelby County) in 1960 than had in 1900. But the
entire county was still only represented by one person in the state legislature, while rural counties
with far fewer people also each had one representative.
In fact, the state constitution required revising the legislative district lines every 10 years to account
for changes in population. But state lawmakers ignored that requirement and refused to redraw the
districts.

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 Baker v. Carr (1962)

An eligible voter who lived in an urban area of Shelby County (Memphis), Charles Baker, believed
that he and similar residents of more heavily populated legislative districts were being denied “equal
protection of the laws” under the 14th Amendment because their votes were “devalued.” He argued
that his vote, and those of voters in similar situations, would not count the same as those of voters
residing in less populated, rural areas. He took his case to the U.S. District Court for the Middle
District of Tennessee and sued the state officials responsible for supervising elections.
The state of Tennessee argued that courts could not provide a solution for this issue because this
was a “political question” that federal courts could not decide. The state said that its political process
should be allowed to function independently. The District Court dismissed Baker’s complaint on the
grounds that it lacked authority to decide the case. Baker appealed that decision up to the U.S.
Supreme Court, which agreed to hear his case.

Issue
Do federal courts have the power to decide cases about the apportionment of population into state
legislative districts?

Constitutional Provisions and Supreme Court Precedent

− Article III, section 2 of the U.S. Constitution

“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.”

− 14th Amendment to the U.S. Constitution

No State shall…deny to any person within its jurisdiction the equal protection of the laws.”

− Colegrove v. Green (1946)

An Illinois resident sued state officials to prevent them from holding an upcoming election.
He argued that the boundaries for congressional districts drawn by the Illinois legislature
were irregularly shaped and did not include the same number of people in each. The U.S.
Supreme Court was asked to decide whether Illinois’ congressional districts violated
constitutional requirements for fair districting.
The Court dismissed the case, concluding that federal courts lack the competence to decide
whether a state’s districting decisions are consistent with the Constitution. The Court
decided that, because the legislative districting process is inherently political in nature, the
courts cannot second-guess the political judgment of a state as to how best to draw districts
or order a state to draw its districts any particular way.

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 Baker v. Carr (1962)

Arguments for Baker (petitioner)

− The courts should be able to decide this issue. The text of Article III, section 2 of the U.S.
Constitution is clear: “judicial Power shall extend to all Cases, in Law and Equity, arising
under this Constitution.” This is an issue that arises under the Constitution because the right
of the residents of Tennessee to “equal protection of the law” under the 14th Amendment
was in question.
− “Political questions” that the courts should not address are not neatly defined and are
determined by a number of factors. Just because an issue involves politics does not mean it
is a “political question” that courts cannot decide. By refusing to decide political questions,
courts are trying to avoid a situation where a co-equal branch of government is telling
another what to do. But the courts would not be drawing new districts (that is the
legislature’s responsibility). The courts would simply be instructing the legislature to fix any
constitutional violations.
− Courts should not follow a long-held practice merely because it is a tradition. There needs to
be an important and constitutional reason why the courts should not decide a case.
− Baker’s complaint—that his vote does not count equally—is a very serious violation of his
rights. Many states have been unwilling to address this violation. In a case like this, the
courts must get involved to protect people’s rights and prevent the harm that would happen
if the situation is not addressed immediately.
− The states suggest that voters’ concerns can be remedied by elected officials—that voters
can lobby for state laws and practices. That solution is flawed. Most of the members of the
Tennessee legislature benefited from the districting plan as it existed.

Arguments for Carr (respondent)

− The federal courts do not have the constitutional authority to review legislative districts. One
branch of the government should not tell another what to do on a question that is
committed to the discretion of that branch alone. All three branches—legislative, judicial,
and executive—are equal in the Constitution, and co-equal bodies cannot interfere with each
other’s basic functions.
− If the courts decide this case, they will overstep their authority and abuse their power. The
state of Tennessee can enforce its own laws and decide what legislative districts it thinks
achieve the fairest representational system. The federal government should respect the state’s
sovereignty and not force uniformity in an area where the Constitution left it to the states to
decide how best to draw districts.
− Federal courts have always viewed districting as a uniquely political function that states do
not have to carry out in any particular way.

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 Baker v. Carr (1962)

− Even if the courts had authority to hear the case, there is nothing in the Constitution that
says that state legislative districts must each have the same number of people. Nor is there
any objective way to decide whether a state’s districting decisions are sufficiently “fair.”
− The courts do not need to interfere with the democratic process. If the residents of
Tennessee want to change how their legislature draws the state’s districts, they can encourage
their elected officials to make that change through the existing democratic process.

Decision
In a 6-2 decision, the U.S. Supreme Court decided in favor of Baker. Justice Brennan wrote the
opinion of the Court and was joined by Justice Black and Chief Justice Warren. Justices Douglas,
Clark, and Stewart also joined in Justice Brennan’s majority opinion and wrote separate concurring
opinions. Justices Frankfurter and Harlan dissented.

Majority
The Supreme Court decided that the lower court’s decision that courts could not hear this case was
incorrect. In a dramatic break with tradition and practice, the majority concluded that federal courts
have the authority to enforce the requirement of equal protection of the law against state officials—
including, ultimately, the state legislature itself—if the legislative districts that the state creates are so
disproportionally weighted as to deny the residents of the overpopulated districts equivalent
treatment with underpopulated districts. The majority concluded that there is no inherent reason
why courts cannot determine whether state districts are irrationally drawn in ways that result in
substantially differing populations. Even though politics may enter into the drawing of districts, the
constitutional guarantee of equal protection is judicially enforceable. A challenge to the differing
populations of legislative districts does not present a “political question” that courts are unable to
decide.
The Court did not decide whether Tennessee’s districts actually were unconstitutional, however.
Instead, the justices instructed the District Court to allow a hearing on the merits of Baker’s claim
that the state’s legislative districts violated his 14th Amendment rights. That course established a
precedent that dozens of federal courts later followed in allowing disgruntled residents to try to
prove that legislative districts are unconstitutionally unbalanced.

Dissents
Justices Frankfurter and Harlan disagreed with the majority. They asserted that the Court’s own
precedents were clear and consistent in refusing to review a state’s districting decisions, and they saw
no reason for federal courts to decide these types of cases. This case was seen as an entirely
“different matter from denial of the franchise [right to vote] to individuals because of race, color,
religion or sex.” Because they found nothing in the Constitution that would require states to draw

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 Baker v. Carr (1962)

districts in a particular manner, there was no basis for federal courts to interfere with a political task
that the Constitution left to the state legislatures.
Justice Harlan’s dissent highlighted just how significant the majority decision was. As he noted:
“I can find nothing in the Equal Protection Clause or elsewhere in the Federal Constitution
which expressly or impliedly supports the view that state legislatures must be so structured as
to reflect with approximate equality the voice of every voter. Not only is that proposition
refuted by history … but it strikes deep into the heart of our federal system. Its acceptance
would require us to turn our backs on the regard which this Court has always shown for the
judgment of state legislatures and courts on matters of basically local concern.”

Impact
Following Baker, Tennessee and many other states had to redraw their legislative districts so that
their populations were equal. These changes often reflected the growing populations in cities. By
1966, just four years after the Court decided Baker, 46 states had redrawn their legislative districts.
Baker v. Carr was the beginning of a dramatic shift in how the Court approached redistricting. In the
years after Baker, the Court continued to revolutionize the way it approached redistricting cases. A
series of 1964 cases—Gray v. Sanders, Wesberry v. Sanders, and Reynolds v. Sims—built upon the Court’s
decision in Baker to create the “one person, one vote” standard. This refers to the idea that every
person’s vote should have the same weight, meaning legislative districts must be drawn so that their
populations are about equal.

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 Street Law Case Summary

Brown v. Board of Education of Topeka (1954)

Argued: December 9–11, 1952
Reargued: December 7–9, 1953
Decided: May 17, 1954

Background
In 1868, the 14th Amendment to the U.S. Constitution was ratified in the wake of the Civil War. It
says that states must give people equal protection of the laws and empowered Congress to pass laws
to enforce the provisions of the Amendment. Although Congress attempted to outlaw racial
segregation in places like hotels and theaters with the Civil Rights Act of 1875, the U.S. Supreme
Court ruled that law unconstitutional because it regulated private conduct. A few years later, the
Supreme Court affirmed the legality of segregation in public facilities in the 1896 Plessy v. Ferguson
decision. There, the justices said that as long as segregated facilities were of equal quality, segregation
did not violate the U.S. Constitution. This concept was known as “separate but equal” and provided
the legal foundation for Jim Crow segregation. In Plessy, the Supreme Court said that segregation was
a matter of social equality, not legal equality; therefore, the justice system could not interfere. “If one
race be inferior to the other socially, the constitution of the United States cannot put them on the
same plane.”
By the 1950s, many public facilities had been segregated by race for decades, including many schools
across the country. This case is about whether such racial segregation violates the Equal Protection
Clause of the 14th Amendment.

Facts
In the early 1950s, Linda Brown was a young African American student in Topeka, Kansas. Every
day she and her sister, Terry Lynn, had to walk through the Rock Island Railroad Switchyard to get
to the bus stop for the ride to the all-Black Monroe School. Linda Brown tried to gain admission to
the Sumner School, which was closer to her house, but her application was denied by the Board of
Education of Topeka because of her race. The Sumner School was for White children only.
At the time of the Brown case, a Kansas statute permitted, but did not require, cities of more than
15,000 people to maintain separate school facilities for Black and White students. On that basis, the
Board of Education of Topeka elected to establish segregated elementary schools.
The Browns felt that the decision of the Board violated the Constitution. They and a group of
parents of students denied permission to White-only schools sued the Board of Education of
Topeka, alleging that the segregated school system deprived Linda Brown of the equal protection of
the laws required under the 14th Amendment.

© 2018 Street Law, Inc. Last updated: 08/23/2021

 Brown v. Board of Education of Topeka (1954)

The federal district court decided that segregation in public education had a detrimental (harmful)
effect upon Black children, but the court denied that there was any violation of Brown’s rights
because of the “separate but equal” doctrine established in Plessy. The court said that the schools
were substantially equal with respect to buildings, transportation, curricula, and educational
qualifications of teachers. The Browns asked the U.S. Supreme Court to review that decision, and it
agreed to do so. The Court combined the Brown’s case with similar cases from South Carolina,
Virginia, and Delaware.

Issue
Does segregation of public schools by race violate the Equal Protection Clause of the 14th
Amendment?

Constitutional Amendment and Supreme Court Precedents

− 14th Amendment to the U.S. Constitution

“No State shall…deny to any person within its jurisdiction the equal protection of the laws.”

− Plessy v. Ferguson (1896)

A Louisiana law required railroad companies to provide equal but separate facilities for
White and Black passengers. A mixed-race customer named Homer Plessy rode in the
Whites-only car and was arrested. Plessy argued that the Louisiana law violated the 14th
Amendment by treating Black passengers as inferior to White passengers. The Supreme
Court declared that segregation was legal as long as facilities provided to each race were
equal. The justices reasoned that the legal separation of the races did not automatically imply
that African Americans were inferior, and that legislation and court rulings could not
overcome social prejudices. Justice Harlan wrote a strong dissent, arguing that segregation
violated the Constitution because it permitted and enforced inequality among people of
different races.

− Sweatt v. Painter (1950)

Herman Sweatt was rejected from the University of Texas School of Law because he was
African American. He sued school officials alleging a violation of the 14th Amendment. The
Supreme Court examined the educational opportunities at the University of Texas School of
Law and the Texas State University for Negroes’ new law school and determined that the
facilities, curricula, faculty, and other tangible factors were not equal. Therefore, they ruled
that Sweatt’s rights had been violated. In addition to the more straightforward criteria the
justices examined at the two schools, they reasoned that other factors, such as the reputation
of the faculty and influence of the alumni, could not be equalized.

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 Brown v. Board of Education of Topeka (1954)

Arguments for Brown (petitioner)

− The 14th Amendment’s Equal Protection Clause promises equal protection of the laws. That
means that states cannot treat people differently based on their race without an extremely
good reason. There is not a good reason to keep Black children and White children from
attending the same schools.
− Racial segregation in public schools reduces the benefits of education to Black children,
solely based on their race. Schools for Black children are often inadequate and have less
money and other resources than schools for White children.
− Even if states were ordered by courts to “equalize” their segregated schools, the problems
would not go away. State-sponsored segregation creates and reinforces feelings of superiority
among White students and inferiority among Black students. Segregation places a badge of
inferiority on the Black students, perpetuates a system of separation beyond school, and
gives unequal benefits to White students as a result of their informal contacts with one
another. It undermines Black students’ motivation to seek educational opportunities and
damages identity formation.
− At least two of the high schools in Topeka, Kansas, were already desegregated with no
negative effects. The policy should be consistent in all of Topeka’s public primary and
secondary schools.
− Segregation is morally wrong.

Arguments for Board of Education of Topeka (respondent)

− The 14th Amendment states that people should be treated equally; it does not state that
people should be treated the same. Treating people equally means giving them what they
need. This could include providing an educational environment in which they are most
comfortable learning. White students are probably more comfortable learning with other
White students; Black students are probably more comfortable learning with other Black
students. These students do not have to attend the same schools to be treated equally under
the law; they must simply be given an equal environment for learning.
− In Topeka, unlike in Sweatt v. Painter, the schools for Black and White students have similar,
equal facilities.
− The United States has a federal system of government that leaves educational decision-
making to state and local legislatures. States and local school boards should make decisions
about the best environments for school-aged children.
− Housing and schooling have become interdependent. Segregated housing has led to and
reinforced segregated schools. Students might need to travel far away from their local school
to attend an integrated school. This places a heavy burden on local government to deal with
the changes.

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 Brown v. Board of Education of Topeka (1954)

Decision
The Supreme Court ruled for Linda Brown and the other students; the decision was unanimous.
Chief Justice Earl Warren delivered the opinion of the Court, ruling that segregation in public
schools violates the 14th Amendment’s Equal Protection Clause.
The Court noted that public education was central to American life. Calling it “the very foundation
of good citizenship,” they acknowledged that public education was not only necessary to prepare
children for their future professions and to enable them to actively participate in the democratic
process, but that it was also “a principal instrument in awakening the child to cultural values”
present in their communities. The justices found it very unlikely that a child would be able to
succeed in life without a good education. Access to such an education was thus “a right which must
be made available to all on equal terms.”
The justices then compared the facilities that the Board of Education of Topeka provided for the
education of Black children against those provided for White children. Ruling that they were
substantially equal in “tangible factors” that could be measured easily (such as “buildings, curricula,
and qualifications and salaries of teachers”), they concluded that the Court must instead examine the
more subtle, intangible effect of segregation on the system of public education. The justices then
said that separating children solely on the basis of race created a feeling of inferiority in the “hearts
and minds” of African American children. Segregating children in public education created and
perpetuated the idea that Black children held a lower status in the community than White children,
even if their separate educational facilities were substantially equal in “tangible” factors. This
deprived Black children of some of the benefits they would receive in an integrated school. The
opinion said, “We conclude that in the field of public education the doctrine of ‘separate but equal’
has no place.” Separate educational facilities are inherently unequal. This ruling was a clear departure
from the reasoning in Plessy v. Ferguson, and, in many ways, it echoed aspects of Justice Harlan’s
dissent in that earlier case.

Impact
Brown v. Board of Education of Topeka was a single decision signed by all nine Justices. The Court
acknowledged the importance and potential controversy of this decision, so they acted uniformly to
try to lessen dissent in society. The decision that ordered the desegregation of public schools was
praised by many Americans who supported the civil rights movement.
One year after the decision, the Court addressed the implementation of its decision in a case known
as Brown v. Board of Education of Topeka II. Chief Justice Warren once again wrote an opinion for the
unanimous Court. The Court acknowledged that desegregating public schools would take place in
various ways, depending on the unique problems faced by individual school districts. After charging
local school authorities with the responsibility for solving these problems, the Court instructed
federal trial courts to oversee the process and determine whether local authorities were
desegregating schools in good faith, mandating that desegregation take place with “with all deliberate
speed.”

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 Brown v. Board of Education of Topeka (1954)

That language proved unfortunate, as it gave the Southern states an incentive to delay compliance
with the Court’s mandate.
Many White people fought the implementation of the decision. In Little Rock, Arkansas, the school
board agreed to desegregate its schools. But when nine African American students tried to enter
Little Rock Central High School, those who still supported segregation, along with the Arkansas
National Guard, physically blocked the African American students from entering the school.
President Eisenhower quickly deployed the U.S. Army to enforce the integration decision by
providing an armed escort to the African American students.
Resistance to integration led to further litigation. In Griffin v. County School Board of Prince Edward
County (1964), the Court stated that “[t]he time for mere ‘deliberate speed’ has run out, and that
phrase can no longer justify denying . . . school children their constitutional rights.”
Today all segregation by law (de jure segregation) in public education is unconstitutional. However,
many schools are still largely made up of students from a single racial or ethnic group because
enrollment is assigned based on neighborhoods. This is call de facto segregation because it occurs in
practice without a law mandating it.

Additional information about Brown v. Board of Education of Topeka, including background at three
reading levels, opinion quotes and summaries, teaching activities, and additional resources, can be
found at https://www.landmarkcases.org/.

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 Street Law Case Summary

Citizens United v. FEC (2010)

Argued: March 24, 2009
Reargued: September 9, 2009
Decided: January 21, 2010

Background
Each election cycle, billions of dollars are spent on congressional and presidential campaigns, both
by candidates and by outside groups who favor or oppose certain candidates. Americans disagree
about the extent to which fundraising and spending on election campaigns should be limited by law.
Some believe that unlimited fundraising and spending can have a corrupting influence—that
politicians will “owe” the big donors who help them get elected. They also say that limits on
fundraising and spending help make elections fair for those who don’t have a lot of money. Others
believe that more spending on election campaigns supports broader debate and allows more people
to learn about and discuss political issues. Those who support more spending say that giving and
spending money on elections is a basic form of political speech protected by the First Amendment.
Over the past 100 years, Congress has attempted to set some limits on campaign fundraising in
order to reduce corruption or anything that can be perceived as corruption. Many of these laws have
been challenged at the Supreme Court.
In Buckley v. Valeo (1976), the Supreme Court decided that both donating and spending money on
elections is a form of political speech. For candidates, the money pays for ways to share their views
with the electorate—through advertisements, mail and email, and travel to give speeches. For
donors, giving money to a candidate is a way to express support for the candidate’s political views.
Therefore, any law that limits donating or spending money on elections limits free speech, and the
government must have a very good reason for making such laws.
In Buckley, the Supreme Court also ruled that laws restricting how much a candidate can spend on
their own campaign are unconstitutional. They reasoned that when candidates spend their own
money to get their message out, there is no risk of corruption. However, the Court found that laws
restricting how much individuals and groups can donate directly to candidates are allowed because
that spending is slightly removed from the donor’s own political speech, and such direct
contributions to candidates pose a greater risk of corrupt influences. These direct contribution limits
are still in place. In 2020, the maximum amount an individual could give directly to a federal
candidate was $2,800.
This case, however, is not about either candidate spending or direct donations to candidates. It
involves “political action committees” (PACs), which are a common way that companies, unions,
and politically active persons pool money to support or oppose a candidate or a cause. This case is
about how and when PACs can spend money directly to advocate for the election or defeat of a

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 Citizens United v. FEC (2010)

candidate, called independent expenditures. Do corporations enjoy the same free speech rights as
individuals?

Facts
One of the federal laws that regulates how election money can be raised and spent is the Bipartisan
Campaign Reform Act (BCRA), also known as the McCain-Feingold Act. Passed in 2002, one part
of this law addressed how corporations and unions may spend money to advocate for the election or
defeat of a candidate. The law said that corporations and unions could not spend their own money
on campaigns. Instead, they could set up political action committees (PACs). Employees or
members could donate to the PACs, which could then donate directly to candidates or spend money
to support (or oppose) candidates. The law prohibited corporations and unions from directly paying
for advertisements that supported or denounced a specific candidate within 30 days of a primary
election or 60 days of a general election. It is this part of the BCRA that is at issue in Citizens United
v. Federal Election Commission.
In 2008, Citizens United, a non-profit organization funded partially by corporate donations,
produced Hillary: The Movie, a film created to persuade voters not to vote for Hillary Clinton as the
2008 Democratic presidential nominee. Citizens United wanted to make the movie available to cable
subscribers through video-on-demand services and wanted to broadcast TV advertisements for the
movie in advance. The Federal Election Commission (FEC) declared that Hillary: The Movie was
intended to influence voters, and, therefore, the advertisement limitations in the BCRA applied.
That meant the organization was not allowed to advertise the film or pay to air it within 30 days of a
primary election. Citizens United sued the FEC in federal court, asking to be allowed to show the
film. The District Court heard the case and decided that even though it was a full-length movie and
not a traditional television ad, the film was an appeal to not vote for Hillary Clinton. This meant the
restrictions in the BCRA applied: corporations and organizations could not pay to air this sort of
direct appeal to voters so close to an election.
Because of a special provision in the BCRA, Citizens United appealed the decision directly to the
U.S. Supreme Court. Citizens United asked the Court to decide whether a feature-length film fell
under the advertising rules of the BCRA and whether the law violated the organization’s First
Amendment right to engage in political speech. The Supreme Court agreed to hear the case and
heard oral argument in March 2009. Two months later the Supreme Court asked both parties to
submit additional written responses to a further question: whether the Court should overrule its
prior decisions about the constitutionality of the BCRA. The Court scheduled a second oral
argument session for September 2009.

Issue
Does a law (BCRA) that places limitations on the ability of corporations and labor unions to spend
their own money to advocate for the election or defeat of a candidate violate the First Amendment’s
guarantee of free speech?

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 Citizens United v. FEC (2010)

Constitutional Provision, Law, and Supreme Court Precedents

- First Amendment to the U.S. Constitution

“Congress shall make no law … abridging the freedom of speech …”

- Buckley v. Valeo (1976)

The Court decided that the individual contribution limits in the Federal Election Campaign
Act of 1971 (FECA) were constitutional. The Court said political contributions were a form
of speech and that contribution limits affected donors’ First Amendment rights. However,
they also found that these rights can be limited if the laws specifically address a very
important government interest, such as preventing corruption, without restricting free
speech too much.
The Court also found that the provision in the FECA banning corporations and labor
unions from making “independent expenditures” in support of (or in opposition to) a
particular candidate (as opposed to contributions directly to the candidate or to the
candidate’s campaign) unconstitutionally abridged the First Amendment rights of
corporations and unions to engage in political speech.

- Austin v. Michigan Chamber of Commerce (1990)

A state law in Michigan said that for-profit and non-profit corporations could not use their
money to run ads that support or oppose candidates in state elections. The Supreme Court
decided the Michigan law was constitutional, even though it did restrict corporations’
speech. First, the justices said that the government had a very important reason for
restricting speech—reducing corruption or the appearance of corruption. Corporations, they
reasoned, can accumulate a lot of money and they might use that money to unfairly influence
elections. The justices also pointed out that the Michigan law allowed corporations to set up
separate special funds with money from donors and spend that money on election ads. That
allowed the corporations other avenues for their speech.

- The Bipartisan Campaign Reform Act (BRCA) of 2002 (also known as the McCain-
Feingold Act)
Among other things, this federal law banned any corporation (for-profit or non-profit) or
union from paying for “electioneering communications.” It defined an “electioneering
communication” as a broadcast, cable, or satellite communication that named a federal
candidate within 60 days of a general election or 30 days of a primary. This included both
“express advocacy” (ads that specifically appealed to voters to vote for or against a certain
candidate) and “issue advocacy” (ads that expressed a view about a political issue and
mentioned a candidate).
In 2003, in a case called McConnell v. FEC, the Supreme Court said that the portion of the
BCRA about electioneering communications was constitutional.

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 Citizens United v. FEC (2010)

- Wisconsin Right to Life v. FEC (2007)

The Supreme Court decided that the BCRA’s ban on issue advocacy was unconstitutional.
The Court said that issue advocacy was political speech, and the government could not
prevent organizations from discussing issues simply because the issues might be relevant in
an upcoming election. The justices said that issue ads are not equivalent to contributions,
and there is not a compelling reason that banning the issue ads would reduce corruption.
They also said that issue ads can mention public officials, as long as they are not direct
appeals to vote for or against a specific candidate.

Arguments for Citizens United (petitioner)

− Freedom of political speech is vital to our democracy and spending money on political
advertisements is one way of spreading speech.
− The First Amendment applies equally to speech by individuals and speech by groups.
Companies, unions, and other organizations should not face stricter rules about their speech
than individuals do.
− Newspapers are corporations. Through editorials, news organizations and media companies
try to influence elections. If Congress can ban corporations from placing political ads, what
prevents them from regulating the media as well?
− If a movie about a political candidate produced by a corporation can be banned, then books
about political candidates that are published within 60 days of an election might be banned
as well. Government censorship of this kind would have far-reaching implications.
− Though some people or organizations have more money and can, therefore, speak more, the
First Amendment does not allow for making some forms of speech illegal in order to make
things “fair.”
− Merely spending money to support a candidate—particularly when the money is spent
independently and not given directly to the candidate or their campaign—does not create or
even suggest the corruption that campaign finance reform was originally created to address.
− Incumbents (public officials already in office) have the most to gain by banning independent
spending by companies and organizations. The incumbents have access to much more free
visibility and media time. Americans, including organizations and corporations, should be
able to criticize the existing government and advocate for a change in leadership.

Arguments for the Federal Election Commission (respondent)

− The First Amendment does not apply to corporations because the Constitution was
established for “We the People” and was set up to protect individual, rather than corporate,
liberties.

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 Citizens United v. FEC (2010)

− The BCRA leaves other ways for corporations to speak and to spend money on elections.
The law allows corporations and unions to form Political Action Committees and to fund
advertisements through the PAC. PACs can only use money that has been given to them for
the purpose of political advocacy, unlike a corporation’s general income, which comes from
all sorts of people who might not agree with the corporation’s message.
− The Supreme Court has ruled on these issues before in Austin v. Michigan Chamber of Commerce
and in McConnell v. FEC, which upheld the BCRA’s bans. The Court should not completely
change the law, which has clear public support.
− Corruption is not limited to bribes and direct transactions. By being allowed to spend
unlimited sums of money in support of a candidate, corporations and unions will have
greater access to, if not power over, that candidate.
− Even if no corruption takes place, the public may view the vast sums spent by corporations
and unions for specific candidates and see the appearance of corruption. That could cause
people to lose faith in the electoral system.
− Corporations can accumulate so much money that they could overwhelm the conversation
and drown out the speech of less wealthy individuals in an election.

Decision
The Court ruled, 5-4, that the First Amendment prohibits limits on corporate funding of
independent broadcasts in candidate elections. Justice Kennedy wrote the majority opinion. He was
joined by Chief Justice Roberts and Justices Scalia, Thomas, and Alito. Justice Stevens dissented and
was joined by Justices Ginsburg, Breyer, and Sotomayor.

Majority
The Court reversed two earlier decisions that held political speech by corporations may be limited
(Austin v. Michigan Chamber of Commerce and portions of McConnell v. FEC). The Court began by
asserting two important points: 1) “The Court has recognized that First Amendment protection
extends to corporations” and 2) “Political speech is ‘indispensable to decision making in a
democracy, and this is no less true because the speech comes from a corporation rather than an
individual’.” The justices said that the government’s rationale for the limits on corporate spending—
to prevent corruption—was not persuasive enough to restrict political speech. A desire to prevent
corruption may justify limits on donations to candidates, but not on independent expenditures
(spending that is not coordinated with a candidate’s campaign) to support or oppose candidates for
elected office. The majority struck down the BCRA’s limits on independent expenditures, but it did
not strike down parts of the BCRA that require that televised electioneering communications include
disclosures about who is responsible for the ad and whether it was authorized by the candidate.

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 Citizens United v. FEC (2010)

Dissent
Justice Stevens, writing for the dissenters, said that the First Amendment protects people, not
corporations. The dissenters concluded that the government should be allowed to ban corporate
money from political elections, because it could overwhelm the debate and drown out non-
corporate voices. They noted that Congress had imposed special rules on corporate campaign
spending for more than 100 years. The dissenters also urged adherence to the Austin precedent,
which had upheld similar bans. Without such limits, corporations’ wealth could give them unfair
influence in the electoral process and lead to elections where corporate domination of the airwaves
would decrease the average voter’s exposure to different viewpoints. They argued that the Court’s
ruling “threatens to undermine the integrity of elected institutions across the Nation.” Finally, the
dissenters argued that the BCRA left open ways for corporations to speak through various
mechanisms and even to broadcast political positions outside the limited pre-election windows. The
dissenters considered these to be reasonable “time” limitations intended to protect the integrity of
the electoral process against excessive PAC influence. They also argued that restrictions on use of
corporate money for political purposes would better protect corporate shareholders from having
their stake in a corporation used to support candidates with whom they disagree.

Impact
Citizens United has remained a highly controversial decision in the years since the Court handed down
its ruling. The decision prompted the creation of many “independent expenditure only” groups,
nicknamed “Super PACs,” that can raise and spend money without limits. Since the 2010 Citizens
United decision, every election cycle has broken records for the amount of outside money spent on
elections. Super PACs have emerged as the largest spenders.
Those who support the decision argue that it allows voters to hear more voices, helping them to
come to more educated decisions when voting. Those who oppose it insist that it gives lobbyists and
special interest groups undue power over the political process because large corporations can spend
more on campaign contributions than individual donors can.

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 Street Law Case Summary

Engel v. Vitale (1962)

Argued: April 3, 1962
Decided: June 25, 1962

Background
The First Amendment to the Constitution protects the right to religious worship, yet it also shields
Americans from the establishment of state-sponsored religion. Courts are often asked to decide
tough cases about the convergence of those two elements—the Free Exercise and Establishment
Clauses of the First Amendment.
The United States has a long history of infusing religious acts into its political practices. For
instance, “In God We Trust” is printed on currency. Congress opens each session with a prayer.
Before testifying in court, witnesses typically pledge an oath to God that they will tell the truth.
Traditionally, presidents are sworn in by placing a hand on a Bible. Congress employs a chaplain,
and Supreme Court sessions are opened with the invocation “God save the United States and this
Honorable Court.”
Public schools are bedrock institutions of U.S. democracy, where the teaching of citizenship, rights,
and freedoms are common. This is a case about whether public schools may also play a role in
promoting those values through the daily recitation of prayer.

Facts
Each day, after the bell opened the school day, students in New York classrooms would salute the
U.S. flag. After the salute, students and teachers voluntarily recited this school-provided prayer,
which had been drafted by the state education agency, the New York State Board of Regents:
“Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us,
our parents, our teachers and our country.” The prayer was said aloud in the presence of a teacher,
who either led the recitation or selected a student to do so. Students were not required to say this
prayer out loud; they could choose to remain silent. Two Jewish families (including Steven Engel), a
member of the American Ethical Union, a Unitarian, and a non-religious person sued the local
school board, which required public schools in the district to have the prayer recited. The plaintiffs
argued that reciting the daily prayer at the opening of the school day in a public school violated the
First Amendment’s Establishment Clause. After the New York courts upheld the prayer, the
objecting families asked the U.S. Supreme Court to review the case, and the Court agreed to hear it.

Issue
Does the recitation of a government-composed prayer in public schools violate the Establishment
Clause of the First Amendment?

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 Engel v. Vitale (1962)

Constitutional Amendment and Supreme Court Precedents

− First Amendment to the U.S. Constitution

“Congress shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof…;”

− West Virginia State Board of Education v. Barnette (1943)

The West Virginia Board of Education required that all public schools include a salute of the
American flag as a part of their activities. Everyone, including teachers and pupils, was
required to salute the flag. If they did not, they could be charged with “insubordination” and
punished. Students who were members of a religious sect, the Jehovah’s Witnesses, cited a
religious objection to saluting the flag, claiming that it was equivalent to “idolatry.” Their
parents sued the state board of education asserting that the compulsory flag salute was a
violation of the Establishment Clause. The Supreme Court ruled that the mandatory salute
was unconstitutional. They said that a flag salute was a form of speech because it was a way
to communicate ideas. In West Virginia State Board of Education v. Barnette, the Court ruled that
in most cases the government cannot require people to express ideas that they disagree with,
especially when the ideas conflict with their own religious beliefs.

− McCollum v. Board of Education (1948)

In McCollum v. Board of Education, the Court said a public school violated the Establishment
Clause when it allowed the school to teach religious instruction during school hours on
school property. The schools set aside time for religious instruction, organized selection of
religious community members to teach the school children and administered the instruction.
The Court ruled in an 8–1 decision this violated the Establishment Clause by establishing a
government preference for certain religions.

Arguments for Engel (petitioner)

− This school-sponsored prayer violates the Establishment Clause of the First Amendment as
applied to the states. Public schools are part of the government, and the Establishment
Clause says that the government cannot favor any one religion over another. The prayer
includes the words “Almighty God” and thus favors monotheistic religions.
− It also violates the Free Exercise part of the First Amendment, because it has the effect of
coercing children to participate in a religious proceeding. Children are required to attend
school; they cannot choose to skip school even if the prayer conflicts with their beliefs.
− A teacher leads the students in prayer and cooperates in carrying out the mandate requiring
religious training in the public schools. This prayer is religious instruction and teachers are
state officials; therefore, the government is forcing a belief in organized religion.

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 Engel v. Vitale (1962)

− Although the prayer is voluntary, few parents or students would choose not to participate,
because students would be singled out for their religious (or non-religious) beliefs.
− In earlier cases like Barnette and McCollum, the Supreme Court made it clear that public
schools cannot promote specific religions over others and cannot force children to
participate in activities that violate their religious beliefs.

Arguments for Vitale (respondent)

− This prayer safeguards the religious heritage of the nation. Beginning with the Mayflower
Compact, the country’s founders have publicly and repeatedly recognized the existence of a
supreme being or God. In the Declaration of Independence, there are four references to the
Creator who endowed humans with “unalienable rights.” Congress opens its session with a
prayer, and presidents often conclude speeches with “God bless the United States of
America.”
− The New York schools’ prayer is a recognition of this broad religious tradition. It is non-
denominational and does not imply preference of any one religion over others.
− Schools fulfill a function of character- and citizenship-education, supplementing the training
that often occurs at home. A short, nondenominational prayer aligns with this character
education function.
− The New York Regents’ prayer is voluntary, not mandatory. Any child could remain silent or
be excused by parental request with the principal’s approval.
− The Pledge of Allegiance includes the word “God” and is widely accepted and recited in
schools. In previous cases the Supreme Court did not strike down references to God as
violations of the First Amendment.

Decision
The Supreme Court ruled, 6-1, in favor of the objecting parents. Justice Black wrote the majority
opinion and was joined by Chief Justice Warren and Justices Douglas, Clark, Harlan, and Brennan.
Justices Frankfurter and White did not participate. Justice Douglas filed his own concurring opinion.
Justice Stewart dissented.

Majority
The Court ruled that the school-sponsored prayer was unconstitutional because it violated the
Establishment Clause. The prayer was found to be a religious activity composed by government
officials (school administrators) and used as a part of a government program (school instruction) to
advance religious beliefs. The Court rejected the argument that the state-sponsored prayer was not
an “establishment of religion” simply because the prayer was nondenominational and voluntary. The
Court’s opinion provided an example from history: “…this very practice of establishing

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 Engel v. Vitale (1962)

governmentally composed prayers for religious services was one of the reasons which caused many
of our early colonists to leave England and seek religious freedom in America.” The Court also
explained that, while the most obvious effect of the Establishment Clause was to prevent the
government from setting up a particular religious sect or church as the “official” church, its
underlying objective is broader:
“Its first and most immediate purpose rested on the belief that a union of government and
religion tends to destroy government and to degrade religion. The history of governmentally
established religion, both in England and in this country, showed that whenever government
had allied itself with one particular form of religion, the inevitable result had been that it had
incurred the hatred, disrespect and even contempt of those who held contrary beliefs. That
same history showed that many people had lost their respect for any religion that had relied
upon the support of government to spread its faith.”
The Court also said that preventing the government from sponsoring prayer does not indicate
hostility toward religion.

Dissent
Justice Stewart argued in his dissent that the majority opinion misapplied the Constitution in this
case. He emphasized that the prayer was voluntary and that students were free to choose not to say
it. “I cannot see how an ‘official religion’ is established by letting those who want to say a prayer say
it. On the contrary, I think that to deny the wish of these school children to join in reciting this
prayer is to deny them the opportunity of sharing in the spiritual heritage of our Nation.” As part of
his argument, Justice Stewart described the history of religious traditions in American government,
from opening with “God save the United States and this Honorable Court” at the beginning of each
Supreme Court session to the references to God in the “Star-Spangled Banner” and on U.S.
currency. According to Justice Stewart, neither these practices nor New York’s school prayer
established an “official religion.” They merely continued long-standing American traditions. Justice
Stewart argued that the Establishment Clause was meant to keep the government from forming a
state-sponsored church (like the Church of England), not to prohibit all government involvement
with religion.

Impact
Before Engel v. Vitale was decided, it was common for schools to start the day with a non-
denominational prayer. The Court’s decision in this case ended that practice in public schools. Later
cases expanded the precedent set in Engel to other circumstances, prohibiting organized prayer at
school events like football games and graduation ceremonies.
Engel v. Vitale remains controversial. Some people blame problems in society on the lack of prayer in
public schools. However, Engel only banned school-led prayer; students remain free to pray by
themselves or in groups providing it does not disrupt classroom instruction or the educational
mission of the school.

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 Engel v. Vitale (1962)

Additional information about Engel v. Vitale, including background at three reading levels, opinion
quotes and summaries, teaching activities, and additional resources, can be found at
https://www.landmarkcases.org/.

© 2018 Street Law, Inc. 22

 Street Law Case Summary

Gideon v. Wainwright (1963)

Argued: January 15, 1963
Decided: March 16, 1963

Background
Part of the Bill of Rights, the Sixth Amendment to the U.S. Constitution protects the rights of
people accused of crimes. Among these protections is the right to have a criminal defense lawyer’s
assistance. That means that the government cannot prevent someone from consulting with a lawyer
and having a lawyer represent them in court. Not everyone who has been accused of a crime,
however, can afford to hire a lawyer. In 1938, the U.S. Supreme Court ruled that, in federal criminal
courts, the government must pay for a lawyer for indigent defendants who cannot afford one
themselves. People are considered indigent if they are so poor that they are unable to afford the
necessities of life like food and shelter. Gideon v. Wainwright is a case about whether or not that right
must also be extended to indigent defendants charged with crimes in state courts, where most crimes
are prosecuted.
The 14th Amendment says that states shall not “deprive any person of life, liberty, or property,
without due process of law.” The Supreme Court has ruled that some of the constitutional rights
that at first only protected people from infringement by the federal government, are so fundamental
to the concept of liberty (protected by the 14th Amendment) that they must also apply to state
governments. In 1963, the Supreme Court reconsidered whether, in criminal cases, the right to
counsel paid for by the government was one of those fundamental rights, even though it had held
the opposite only 21 years before.

Facts
In 1961, someone burglarized the Bay Harbor Pool Room in Panama City, Florida. Based partly on
eyewitness reports, police arrested Clarence Earl Gideon after he was found nearby with a pint of
wine and some change in his pockets. Gideon, who could not afford a lawyer, asked the Florida
court to appoint one for him. The judge denied his request. At that time Florida law required
appointment of counsel for indigent defendants only in capital (death penalty) cases. Gideon
defended himself at trial, but the jury found him guilty of breaking and entering and petty larceny,
which are felonies under Florida law.
While serving his five-year sentence in a Florida state prison, Gideon began studying law. His study
reaffirmed his belief that his rights were violated when the Florida Circuit Court refused his request
for appointed counsel. Gideon filed a habeas corpus petition, arguing that he was improperly
imprisoned because he had been refused a free lawyer during his trial, thus violating his
constitutional rights guaranteed by the Sixth Amendment. The Florida Supreme Court ruled against

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 Gideon v. Wainwright (1963)

him. From his prison cell, Gideon hand-wrote a petition to the U.S. Supreme Court, asking the
Court to hear his case. The Supreme Court agreed and appointed lawyer Abe Fortas, who was later
named as a justice to the Supreme Court, to argue on his behalf.

Issue
Does the Sixth Amendment’s right to counsel in criminal cases extend to defendants in state courts,
even in cases in which the death penalty is not at issue?

Constitutional Amendments and Supreme Court Precedents

− Sixth Amendment to the U.S. Constitution

“In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of
Counsel for his defense.”

− 14th Amendment to the U.S. Constitution

“…nor shall any State deprive any person of life, liberty, or property, without due process of
law….”

− Powell v. Alabama (1932)

Nine teenagers were accused of assaulting two women. All nine were tried on one day within
a week after being indicted and were found guilty in Alabama state court and sentenced to
death. No lawyer represented the teens. The Supreme Court ruled that accused persons in a
capital case have the right to counsel for their defense, which includes the right to have
sufficient time to consult with counsel and to prepare a defense. The Court said that this is
one of the fundamental rights that must be applied to the states under the 14th Amendment.
The Court also said that state courts must appoint counsel, whether requested or not, when
the defendant is incapable of making an adequate defense because of “ignorance, feeble-
mindedness, illiteracy or the like.”

− Johnson v. Zerbst (1938)

The Supreme Court said that the Sixth Amendment requires that, in federal criminal cases
that could be punishable by imprisonment, lawyers must be provided for defendants too
poor to hire their own lawyer, unless the accused person waives that right.

− Betts v. Brady (1942)

Betts was convicted of robbery in Maryland under circumstances very similar to Gideon’s.
Despite Betts’ request that a lawyer be appointed for him, the Supreme Court ruled that the
14th Amendment did not require states to provide counsel to the poor in non-death-penalty
cases.

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 Gideon v. Wainwright (1963)

Arguments for Gideon (petitioner)

− Fair trials cannot be assured unless everyone has the assistance of a lawyer. The average
person does not have the knowledge, resources, and skill required to provide an adequate
legal defense for themself.
− The Supreme Court has ruled that the right to counsel in death penalty cases is fundamental
and applies to the states (Powell v. Alabama), but not in non-death-penalty cases (Betts v.
Brady). This is not logical, and Betts v. Brady should be overturned. The Sixth Amendment
does not distinguish between types of criminal cases, and neither does the 14th Amendment.
Even non-capital crimes can result in long prison sentences, which is depriving someone of
their liberty. There is no “trivial” criminal case because a person’s liberty is at stake.
− Society changed its thinking about the right to counsel between 1942, when Betts v. Brady was
decided, and 1963, when Gideon came before the Court. At the time of the Betts v. Brady
decision, fewer than half of the states required appointment of counsel to the poor. At the
time of Gideon’s arrest, over 45 states required it.
− There is broad support to overturn Betts v. Brady. Twenty-two states filed amicus curiae,
(“friend of the court”) briefs to support the application of the Sixth Amendment right to
counsel to state courts regardless of the type of offense.

Arguments for Wainwright (respondent)

− Betts v. Brady established that in any criminal case a defendant is entitled to counsel if they
can claim special circumstances that show they would be denied a fair trial without counsel.
Gideon did not claim such circumstances.
− The United States has a federal system in which the federal government may not exercise
arbitrary power over the states. Imposing an inflexible rule on states that all defendants are
entitled to counsel if they cannot afford one would allow the Supreme Court (the federal
government) to intrude into states’ powers. A state should be free to adopt any system it
chooses, experimenting and adopting the types of rules and procedures it feels are necessary
in its own courts.
− It is possible for a defendant without a lawyer to have a fair trial. Several judges may be
involved in the processing of a defendant including arraignment, pretrial, and the trial. This
exposure to multiple judges protects the defendant who is without a lawyer, as each judge
knows the law and will ensure that the defendant is treated fairly. In any case, representation
by a lawyer does not automatically guarantee a fair trial.
− The Supreme Court should uphold Betts v. Brady, which was decided only 21 years before
Gideon. The Court considered this issue then and issued a ruling that should remain in force.

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 Gideon v. Wainwright (1963)

− If Betts v. Brady is overturned, states would have to provide lawyers to the indigent in all
criminal prosecutions, no matter how small or trivial they are. This would place a
tremendous burden on the taxpayers of every state.

Decision
The Supreme Court ruled unanimously for Gideon. Justice Black delivered the opinion for the
Court. Justices Douglas, Harlan, and Clark wrote concurring opinions, mostly concerned about why
the Court was overturning a precedent that was only 21 years old or whether the 14th Amendment
applied all of the Bill of Rights to the states. The Supreme Court in Gideon said that the right to the
assistance of counsel in felony criminal cases is a fundamental right essential to a fair trial. Therefore,
this protection from the Sixth Amendment applied to state courts as well as federal courts. State
courts must appoint counsel to represent defendants who cannot afford to pay for their own lawyers
if charged with a felony.
The Court said that the best proof that the right to counsel is fundamental and essential is that
governments spend a lot of money to establish systems of justice and hire lawyers to prosecute
crimes. Those defendants who can afford to almost always hire the best lawyer they can get. This
indicates that both the government and defendants consider the aid of a lawyer in criminal cases
absolutely necessary. In addition, the opinion noted that the Constitution places great emphasis on
procedural safeguards designed to guarantee that defendants get fair trials.

Impact
The Court’s Gideon decision is rightfully regarded as one of the most significant of the cases decided
by the Warren Court in what has been called a due process revolution. The right to have a free
lawyer provided by the government has even become part of the Miranda warnings given to those
arrested by the police. At the time, the Gideon decision only applied to criminal defendants charged
with felonies. In 1972, the Court decided the case of Argersinger v. Hamlin, which extended the Gideon
rule so that poor defendants charged with misdemeanors could not be imprisoned unless they had
received free legal counsel. Gideon and subsequent cases did not have any constitutional impact in
terms of creating a constitutional right for legal aid in civil (non-criminal) cases.
Even though Gideon led to the creation of public defender offices and government-provided lawyers
nationwide, it has had practical limitations. Adequate resources are always a problem, and courts and
policymakers have struggled with how effective or experienced the free counsel needs to be. Today,
more than 50 years later, it is fair to say Gideon stands as a significant landmark in securing the ideal
of fair justice for all, even though its promise is still somewhat unfulfilled.

Additional information about Gideon v. Wainwright, including background at three reading levels,
opinion quotes and summaries, teaching activities, and additional resources, can be found at
https://www.landmarkcases.org/.

© 2018 Street Law, Inc. 26

 Street Law Case Summary

Marbury v. Madison (1803)

Argued: February 11, 1803
Decided: February 24, 1803

Background
Article III of the U.S. Constitution, which provides the framework for the judicial branch of
government, is relatively brief and broad. It gives the Supreme Court the authority to hear two types
of cases: original cases and appeals. “Original jurisdiction” cases start at the Supreme Court—it is
the first court to hear the case. “Appellate jurisdiction” cases are first argued and decided by lower
courts and then appealed to the Supreme Court, which can review the decision and affirm or reverse
it.
In order to build the court system and clarify the role of the courts, Congress passed the Judiciary
Act of 1789. This law authorized the Supreme Court to “issue writs of mandamus … to persons
holding office under the authority of the United States.” A writ of mandamus is a command by a
superior court to a public official or lower court to perform a special duty. These are common in
court systems.
In 1801, at the end of President John Adams’ time in office, he appointed many judges from his
own political party before the opposing party took office. It was the responsibility of the secretary of
state, John Marshall, to finish the paperwork and give it to each of the newly appointed judges—this
was called “delivering the commissions.” Although Marshall signed and sealed all of the
commissions, he failed to deliver 17 of them to the respective appointees. Marshall assumed that his
successor would finish the job. However, when Thomas Jefferson became president, he told his new
secretary of state, James Madison, not to deliver some of the commissions because he did not want
members of the opposing political party to assume these judicial positions. Those individuals could
not take office until they actually had their commissions in hand.

Facts
William Marbury, who had been appointed a justice of the peace of the District of Columbia, was
one of the appointees who did not receive his commission. Marbury sued James Madison and asked
the Supreme Court to issue a writ of mandamus requiring Madison to deliver the commission.
The politics involved in this dispute were complicated. The new chief justice of the United States
who was being asked to decide this case was John Marshall, the Federalist secretary of state who had
failed to deliver the commission. President Jefferson and Secretary of State Madison were
Democratic-Republicans who were attempting to prevent the Federalist appointees from taking
office. If Chief Justice Marshall and the Supreme Court ordered Madison to deliver the commission,
it was likely that he and Jefferson would refuse to do so, which would make the Court look weak.

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 Marbury v. Madison (1803)

However, if they did not require the commission delivered, it could look like they were backing
down out of fear. Chief Justice Marshall instead framed the case as a question about whether the
Supreme Court even had the power to order the writ of mandamus.

Issues
Does Marbury have a right to his commission, and can he sue the federal government for it? Does
the Supreme Court have the authority to order the delivery of the commission?

Constitutional Provisions and Federal Law

− Article III, Section 2, Clause 2 of the U.S. Constitution

“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.”

− The Judiciary Act of 1789

This Act authorized the Supreme Court to “issue writs of mandamus … to persons holding
office under the authority of the United States.”

Arguments
There was no oral argument at the appellate stage of this case. Below are arguments that can be
made for the parties in the case.

Arguments for Marbury (petitioner)

− Marbury’s commission was valid, whether it was physically delivered or not before the end
of President Adams’ term, because the president had ordered it.
− The Judiciary Act of 1789 clearly gives the Supreme Court the power to order the
commission be delivered.
− Secretary of State Madison, as an official of the executive branch, was required to obey
President Adams’ official act. Therefore, the Court should exercise its authority under the
Judiciary Act to issue a writ of mandamus against Madison.
− Article III states that Congress can make exceptions to which cases have original jurisdiction
in the Courts. The case falls under original jurisdiction of the Supreme Court.

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 Marbury v. Madison (1803)

Arguments for Madison (respondent)

− The appointment of Marbury to his position was invalid because his commission was not
delivered before the expiration of Adams’ term as president.
− The appointment of commissions raised a political issue, not a judicial one. Therefore, the
Supreme Court should not be deciding this case.
− The case falls under the appellate, not original, jurisdiction of the Supreme Court. It should
be tried in the lower courts first.

Decision
The decision in Marbury v. Madison ended up being much more significant than the resolution of the
dispute between Marbury and the new administration. The Supreme Court, in this decision,
established a key power of the Supreme Court that continues to shape the institution today.
The Court unanimously decided not to require Madison to deliver the commission to Marbury. In
the opinion, written by Chief Justice Marshall, the Court ruled that Marbury was entitled to his
commission but that according to the Constitution, the Court did not have the authority to require
Madison to deliver the commission to Marbury in this case. They said that the Judiciary Act of 1789
conflicted with the Constitution because it gave the Supreme Court more authority than it was given
in Article III. The Judiciary Act of 1789 authorized the Supreme Court to “issue writs of mandamus
… to persons holding office under the authority of the United States” as a matter of its original
jurisdiction. However, Article III, section 2, clause 2 of the Constitution, as the Court read it,
authorizes the Supreme Court to exercise original jurisdiction only in cases involving “ambassadors,
other public ministers and consuls, and those [cases] in which a state shall be a party. In all other
cases, the Supreme Court shall have appellate jurisdiction.” The dispute between Marbury and
Madison did not involve ambassadors, public ministers, consuls, or states. Therefore, according to
the Constitution, the Supreme Court did not have the authority to exercise its original jurisdiction in
this case. Thus, the Judiciary Act of 1789 and the Constitution were in conflict with each other.
Declaring the Constitution “superior, paramount law,” the Supreme Court ruled that when ordinary
laws conflict with the Constitution, they must be struck down. Furthermore, the Court said, it is the
job of judges, including the justices of the Supreme Court, to interpret laws and determine when
they conflict with the Constitution. According to the Court, the Constitution gives the judicial
branch the power to strike down laws passed by Congress (the legislative branch) and actions of the
president and their executive branch officials and departments. This is the principle of judicial
review. The opinion said that it is “emphatically the province and duty of the judicial department to
say what the law is.”

Impact
Marbury v. Madison is considered a landmark case because it helped to establish judicial review.
The ruling said that the Constitution is the supreme law of the land and established the Supreme

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 Marbury v. Madison (1803)

Court as the final authority for interpreting it. Therefore, when courts rule that a law or action
and the Constitution are in conflict, the law or action can be declared unconstitutional and
struck down. This decision elevated the judicial branch to be an equal partner with the executive
and legislative branches. The decision in Marbury v. Madison greatly expanded the Supreme
Court’s powers.

Additional information about Marbury v. Madison, including background at three reading levels,
opinion quotes and summaries, teaching activities, and additional resources, can be found at
https://www.landmarkcases.org/.

© 2018 Street Law, Inc. 30

 Street Law Case Summary

McCulloch v. Maryland (1819)

Argued: February 22–26, 1819 and March 1–3, 1819
Decided: March 6, 1819

Background
In 1791, the First Bank of the United States was established to serve as a central bank for the
country. It was a place for storing government funds, collecting taxes, and issuing sound currency.
At the time it was created, the government was in its infancy and there was a great deal of debate
over exactly how much power the national government should have. In particular, many people
focused on the fact that the Constitution did not expressly grant Congress the power to charter
corporations or banks. Many thought that the only way to justify the federal government’s creation
of a central bank would be to interpret the Constitution as giving the federal government “implied”
powers. This idea of implied powers worried many individuals who feared that this interpretation of
the Constitution would create an all-powerful national government that would threaten the
presumed sovereignty of the states.
The debate about the constitutionality of the First Bank was intense. Some people, such as
Alexander Hamilton, argued for the supremacy of the national government and a broad
interpretation of its powers, which would include the ability to establish a bank. Others, such as
Thomas Jefferson, advocated states’ rights, limited government, and a narrower interpretation of the
national government’s powers under the Constitution and, therefore, no bank.
President Washington decided that a national bank should be established and signed the bill creating
it. The First Bank had a 20-year charter and was generally a success. However, while James Madison
was president, the bank’s charter was allowed to expire in 1811. Congress proposed a Second Bank
of the United States in 1816. President Madison, who was a staunch opponent of the creation of the
First Bank, approved the charter, believing that its constitutionality had been settled by prior
practices and understandings.
The Second Bank established branches throughout the United States. Many states opposed opening
branches of this bank within their boundaries for several reasons. First, the Bank of the United
States competed with their own banks. (At this point in history, there was no single currency in the
United States. Each state issued its own money, and the Bank of the United States also had authority
to issue currency.) Second, the states found many of the managers of the Second Bank to be
corrupt. Third, the states felt that the federal government was exerting too much power over them
by attempting to curtail the state practice of issuing more paper money than they were able to
redeem.

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 McCulloch v. Maryland (1819)

Facts
Maryland attempted to close the Baltimore branch of the national bank by passing a law that forced
all banks chartered outside of the state to pay a yearly tax (the Second Bank was the only such bank
in the state). James McCulloch *, the chief administrative officer of the Baltimore branch, refused to
pay the tax. The state of Maryland sued McCulloch, saying that Maryland had the power to tax any
business in its state and that the Constitution does not give Congress the power to create a national
bank. McCulloch was convicted, but he appealed the decision to the Maryland Court of Appeals. His
attorneys argued that the establishment of a national bank was a “necessary and proper” function of
Congress, one of many implied, but not explicitly stated, powers in the Constitution.
The Maryland Court of Appeals ruled in favor of Maryland, and McCulloch appealed again. The
case was heard by the Supreme Court of the United States.

Issues
Did Congress have the authority under the Constitution to commission a national bank? If so, did
the state of Maryland have the authority to tax a branch of the national bank operating within its
borders?

Constitutional Provisions

− Article I, Section 8, Clause 18 (Necessary and Proper Clause) of the U.S. Constitution
“The Congress shall have Power... To make all Laws which shall be necessary and proper for
carrying into Execution the foregoing Powers and all other Powers vested by this
Constitution in the Government of the United States, or in any Department or Officer
thereof.”

− Article VI, Clause 2 (Supremacy Clause) of the U.S. Constitution

“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.”

− 10th Amendment to the U.S. Constitution

“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.”

* In the Supreme Court’s opinion for this case, James McCulloch’s surname was spelled MʻCulloch.

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 McCulloch v. Maryland (1819)

Arguments for McCulloch (petitioner)

− The Necessary and Proper Clause permits Congress to make laws as they see fit. A law
creating a national bank is necessary for the running of the country.
− While the Constitution does not specifically say that Congress has the power to establish a
national bank, there is also nothing in the Constitution restricting the powers of Congress to
those specifically enumerated.
− The Constitution does give Congress the power to levy taxes, borrow or spend money, and
raise and support an army and navy, among other things. Establishing a national bank is
“necessary and proper” to the exercise of all of those other powers.
− If Congress passed a law within its authority under the Constitution, a state cannot interfere
with that action. Maryland is attempting to interfere with Congress’ action and might try to
tax the bank so heavily that that it would be unable to exist. The Supremacy Clause prohibits
that kind of state interference with federal law.

Arguments for Maryland (respondent)

− The Constitution never says that Congress may establish a national bank.
− The Constitution says that the powers not delegated to the United States are reserved to the
states.
− The federal government shares the ability to raise taxes with the states—it is a concurrent
power. Taxation within a sovereign state’s border, including of federal entities, is a state’s
exercise of a state constitutional power that is a necessary attribute of its sovereignty and
essential to its ability to function effectively.
− The establishment of a national bank interferes with the states’ abilities to control their own
supply of money and their own economies.

Decision
The decision was unanimous in favor of McCulloch and the federal government. Chief Justice John
Marshall authored the opinion of the Court.
The Supreme Court determined that Congress did have the power under the Constitution to create a
national bank. Even though the Constitution does not explicitly include that power, there is also
nothing in the Constitution that restricts Congress’ powers to those specifically enumerated. The
Necessary and Proper Clause gives Congress the authority to make “all laws which shall be necessary
and proper” for exercising the powers that are specifically enumerated, and the establishment of a
national bank is “necessary and proper” to exercising other enumerated powers.
The Court also ruled that Maryland could not tax the Bank of the United States. In their decision the
justices declared that “the constitution and the laws made in pursuance thereof are supreme; that

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 McCulloch v. Maryland (1819)

they control the constitution and laws of the respective states, and cannot be controlled by them.”
Allowing a state to tax a branch of the national bank created by Congress would allow that state to
interfere with the exercise of Congress’ constitutional powers. Thus because “states have no power,
by taxation or otherwise, to retard, impede, burden or in any manner control” the operation of
constitutional laws passed by Congress, Maryland could not be allowed to tax a branch of the
national bank, even though that branch was operating within its borders.

Impact
McCulloch v. Maryland was an important case because it clarified how the United States federal system
would work. The decision explained that although certain powers were reserved for the state
governments, the federal government is still strong and when laws are in conflict, federal law is
supreme over state law. By reinforcing that Congress had implied powers that were not explicitly
listed in the Constitution, McCulloch v. Maryland greatly increased the powers of Congress and,
therefore, the federal government.

Additional information about McCulloch v. Maryland, including background at three reading levels,
opinion quotes and summaries, teaching activities, and additional resources, can be found at
https://www.landmarkcases.org/.

© 2018 Street Law, Inc. 34

 Street Law Case Summary

McDonald v. City of Chicago (2010)

Argued: March 2, 2010
Decided: June 28, 2010

Background
The Second Amendment protects “the right of the people to keep and bear Arms,” but there has
been an ongoing national debate about exactly what that phrase means. The debate only intensified
after the U.S. Supreme Court struck down a handgun ban in the District of Columbia in 2008
(District of Columbia v. Heller). Because of its unique constitutional status as the home of the federal
government (and not a state), the District of Columbia is subject to the restrictions that the
Constitution places on the federal government. As a result, the Heller decision left open the question
whether the Second Amendment applies to state and local governments. In this case, which is about
a ban on guns in Chicago, the Court was presented with that question.
When the Constitution was written, the Bill of Rights applied only to the federal government—not
to the state or local governments. After the Civil War, however, the Constitution was amended to
include the 14th Amendment, which guarantees that the states shall not deprive anyone of life,
liberty, or property without due process of law. In the decades after the 14th Amendment, the
Supreme Court began to rule that different parts of the Bill of Rights did apply to state and local
governments through the process of selective incorporation. The Court said that some of the
liberties protected in the Bill of Rights are fundamental to our concept of liberty and that it would
violate the 14th Amendment’s guarantee of due process if states interfered with those liberties. Over
time, the Court has ruled that almost all of the Bill of Rights do apply to the states. Before 2010, the
Supreme Court had never ruled on whether the Second Amendment’s right to bear arms was one of
those fundamental rights that states could not infringe.

Facts
In 1982, the city of Chicago adopted a handgun ban to combat crime and minimize handgun related
deaths and injuries. Chicago’s law required anyone who wanted to own a handgun to register it. The
registration process was complex, and possession of an unregistered firearm was a crime. In practice,
most Chicago residents were banned from possessing handguns.
In 2008, after the Court decided Heller and said that the Second Amendment includes an individual
right to keep and bear arms, Otis McDonald and other Chicago residents sued the city for violating
the Constitution. They claimed that Chicago’s handgun regulations violate their 14th Amendment
rights. Specifically, the residents argued that the 14th Amendment makes the Second Amendment
right to keep and bear arms applicable to state and local governments.

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 McDonald v. City of Chicago (2010)

The federal District Court ruled for Chicago. McDonald appealed. The Seventh Circuit Court of
Appeals decided for Chicago, as well. That court ruled that the Second Amendment right to keep
and bear arms protects individuals only from regulation by the federal government. McDonald asked
the U.S. Supreme Court to hear the case, and it agreed to do so.

Issue
Does the Second Amendment right to keep and bear arms apply to state and local governments
through the 14th Amendment and thus limit Chicago’s ability to regulate guns?

Constitutional Amendments and Supreme Court Precedents

− Second Amendment to the U.S. Constitution

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

− 14th Amendment to the U.S. Constitution

“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….”

− Duncan v. Louisiana (1968)

In this case the Supreme Court incorporated a provision of the Bill of Rights, making it
applicable to state and local governments. Duncan was charged with simple battery, a crime
that Louisiana law allowed to be tried without a jury. Duncan was convicted and then
appealed his conviction. He argued that his conviction should be overturned because the
state violated his Sixth Amendment right to a jury trial in a criminal case. At that time the
right to a jury trial was guaranteed only in federal cases. When the Supreme Court
considered whether a portion of the Bill of Rights should apply to the states under the 14th
Amendment, the justices considered whether the right at issue was fundamental and rooted
in the tradition and conscience of the American people. When this case reached the U.S.
Supreme Court, the Court considered whether the right to a jury trial for criminal offenses is
“fundamental to the American scheme of justice.” Noting the long tradition of jury trials for
criminal offenses, wide state recognition of the right, and the importance of having a jury,
the Court ruled that the Sixth Amendment right to a jury trial applies to the states.

− District of Columbia v. Heller (2008)

The District of Columbia (which is not a state) had a ban on handguns, and the U.S.
Supreme Court ruled that ban unconstitutional. The Court decided that the Second
Amendment guarantees an individual right to gun ownership, which the federal (or D.C.)
government may not infringe. Laws from the 1600s and 1700s, which included a right for

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 McDonald v. City of Chicago (2010)

individuals to possess weapons for self-defense, indicated that the Framers recognized an
individual right to bear arms as a fundamental right.
The Court observed, however, that the right is not absolute. It applies only to weapons in
common use, such as handguns. The government may still impose reasonable regulations on
weapons possession without infringing the right to bear arms. For example, it seemed likely
that government could prohibit felons from having guns and prohibit the possession of guns
in sensitive places such as schools. The Court also noted that its ruling in Heller was not a
decision that applied directly to state and local gun regulations. It bound the District of
Columbia because the District is an instrument of the federal government.

Arguments for McDonald (petitioner)

− The Second Amendment applies to the states because the right to keep and bear arms is
deeply rooted in American history. Possessing a gun is a right that pre-dates even the
founding of the country, and guns are still an important part of American culture and liberty.
− Most provisions of the first eight amendments already apply to the states, and the Second
Amendment should not be treated differently. Rights articulated in the Bill of Rights are
assumed to be fundamental.
− The Second Amendment affords American citizens the ability to defend themselves against a
tyrannical government. It would not make sense to allow citizens to defend themselves
against the federal government but not state or local governments.
− The Chicago ban obstructs the core right the Court recognized in Heller: keeping a common
weapon, like a handgun, for protection in one’s home.
− The Chicago ban is nearly the same as the one the Court struck down in Heller, so it cannot
be described as a reasonable gun regulation. In practice, it is a total ban on gun ownership,
and that is not reasonable.
− Applying the Second Amendment to the states will not create a public safety crisis. Heller
suggested that the right to keep and bear arms is limited to weapons in common use and that
traditional regulations that keep guns out of the hands of felons and out of places such as
schools are not threatened by the Second Amendment.

Arguments for Chicago (respondent)

− The Constitution and Bill of Rights have traditionally been understood as limits on the
federal government, not the states.
− Although Heller recognized an individual right to keep and bear arms that the federal
government may not infringe, that decision did not prohibit states from controlling guns.

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 McDonald v. City of Chicago (2010)

− Even if gun ownership was important at the time of the founding of the United States, much
has changed since then. There is an ongoing national debate on guns and a variety of state
approaches to gun control. The right to keep a handgun cannot be described as fundamental
or an established American tradition that warrants incorporation.
− The Court’s decision in Heller noted that the right to keep and bear arms is not absolute.
States, like the federal government, should be able to impose some reasonable regulations to
keep their citizens safe given that crime, injury, and death are all linked to handguns.
− Unlike the District of Columbia’s complete ban on handguns, which was struck down in
Heller, Chicago simply establishes procedures that residents must follow in order to possess a
gun. Given the particulars of Chicago’s history of gun violence, the regulation is reasonable.
− The Court should defer to state judgments regarding gun control. States and the cities within
them each face their own particular public safety issues. Applying the Second Amendment to
the states would likely strike down thousands of gun regulations across the country and
create dangerous uncertainty for states and cities that face serious problems linked to guns.

Decision
The Supreme Court ruled, 5-4, in favor of McDonald. Justice Alito announced the judgment and
opinion of the Court. Chief Justice Roberts and Justices Scalia and Kennedy joined Justice Alito’s
opinion in full, and Justice Thomas joined only in part. Justices Stevens, Breyer, Ginsburg, and
Sotomayor dissented.

Majority
Writing for a majority of the Court, Justice Alito concluded that the Second Amendment right to
keep and bear arms for the purpose of self-defense is fully applicable to the states under the 14th
Amendment. The Court considered whether the right to keep guns “is fundamental to our scheme
of ordered liberty and system of justice.” Relying on a variety of historical records, the Court
determined that both the Framers and those who ratified the 14th Amendment considered the right
to keep and bear arms among the fundamental rights “necessary to our system of ordered liberty.”
They said that self-defense is a basic right, and that, under Heller, individual self-defense is the
central component of the Second Amendment right to bear arms.
Four of the five justices in the majority also said that applying the Second Amendment against state
and local governments “does not imperil every law regulating firearms.” Echoing the Heller decision,
the plurality suggested that reasonable gun restrictions—such as a ban on felons owning guns or on
carrying guns on school property—would still be allowed. Since there was not a majority for that
part of the opinion, however, it is not the law.

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 McDonald v. City of Chicago (2010)

Dissents
Justices Stevens and Breyer each wrote lengthy dissenting opinions. Justice Stevens argued that the
Second Amendment was adopted to protect the states from federal encroachment and that,
therefore, it made no sense to apply that provision against state and local governments. Justice
Breyer, joined by Justices Ginsburg and Sotomayor, argued that the Second Amendment should not
be incorporated against the states under the 14th Amendment. He asserted that nothing in the
Second Amendment’s text, history, or underlying rationale made it “fundamental” and protective of
the keeping and bearing of arms for private self-defense. Justice Breyer criticized the Court for
transferring the regulation of private firearm use away from democratically elected legislatures and
states to the courts and the federal government.

Impact
McDonald v. Chicago struck down Chicago’s handgun ban and held that the Second Amendment right
to keep guns for the purposes of self-defense is incorporated against the states. It expanded the
ruling of Heller to apply to all state governments, not just the District of Columbia and the federal
government. This means that all gun laws, including state and federal laws, must adhere to the
Second Amendment in order to be constitutional.
However, the Court did not use McDonald to strike down every state and federal law relating to the
possession of guns. Although Justice Alito wrote in his opinion that the ruling in McDonald “does
not imperil every law regulating firearms,” the Court did not answer the question of which kinds of
regulations would be permissible under the Second Amendment. Following McDonald, guns rights
advocates filed lawsuits across the country, arguing that state gun laws were either wholly or in part
unconstitutional.
Courts are still determining what restrictions on gun ownership are constitutional under the Second
Amendment and the Supreme Court’s ruling in McDonald. Since it was decided in 2010, the Court
has heard very few cases relating to gun rights.

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 Street Law Case Summary

New York Times Co. v. United States (1971)

Argued: June 26, 1971
Decided: June 30, 1971

Background
The United States’ involvement in the Vietnam War became increasingly controversial and
unpopular among Americans as the conflict persisted over a decade.
Since security and secrecy were important to the United States’ aims in the war, the government
enforced laws to punish spying or breaches of national security. The Espionage Act, which was
enacted at the beginning of World War I, made it a crime for anyone to obtain information relating
to America’s national defense with the intent to use it (or reason to believe it will be used) to the
injury of the United States or to the advantage of a foreign nation. Additionally, anyone who
willfully received such information without reporting it to the appropriate government agent was
also at risk for criminal prosecution. The law was used to punish traditional spying and sabotage, but
it was also used sometimes to prosecute people for speaking out against wars or other government
actions.
This case is about when laws intended to protect American security interests come into conflict with
the First Amendment’s freedom of the press. How much power does the government have to
prevent the media from publishing sensitive information?

Facts
Daniel Ellsberg, a former military analyst, was disillusioned with the Unites States’ continued role in
the Vietnam War. He felt so strongly that the U.S. should not be in Vietnam that in 1971, he illegally
copied over 7,000 pages of classified reports kept at the RAND Corporation, a research institution
where he worked. These pages would come to be known as the “Pentagon Papers.” Some of these
documents were leaked to major publications, such as the New York Times and the Washington Post.
These documents contained intimate details about the decision-making plans behind the United
States’ intervention in the Vietnam conflict, as well as details that revealed contradictions between
President Lyndon Johnson’s motivations in Southeast Asia and his public remarks.
Neil Sheehan, the New York Times reporter who received the lead from Ellsberg, knew he had the
story of the year, but the paper ran the risk of violating the Espionage Act if it published the papers.
After printing two stories about the Pentagon Papers, President Nixon directed his attorney general
to order the Times to stop, claiming the publications would cause “irreparable injury to the defense
interests of the United States.” The Times refused and the U.S. government sued the newspaper for
violating the Espionage Act.

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 New York Times Co. v. United States (1971)

A federal judge issued a restraining order to stop further publication until trial. However, during that
time, the Washington Post also printed portions of Ellsberg’s papers. The government asked a federal
court to stop the Post from publishing future stories about the papers, citing again the Espionage
Act. Both newspapers argued that the First Amendment protected their right to publish. Two
different federal courts heard the Times and Post cases. Both newspapers won at the trial court, and
the government appealed. The Court of Appeals for the D.C. Circuit ruled for the Washington Post,
while the Court of Appeals for the Second Circuit ruled for the government (against the New York
Times). The U.S. Supreme Court agreed to hear both cases, combining them and holding oral
argument just one day after the justices agreed to take the cases.

Issue
Did the government’s efforts to prevent two newspapers from publishing classified information
given to them by a government leaker violate the First Amendment protection of freedom of the
press?

Constitutional Amendments and Supreme Court Precedents

− First Amendment to the U.S. Constitution

“Congress shall make no law…abridging the freedom of speech, or of the press”

− Near v. Minnesota (1931)

J.M. Near published the Saturday Press in Minneapolis, Minnesota; the paper was widely
viewed as anti-Semitic, anti-labor, and anti-Catholic. Minnesota’s “public nuisance” law
prohibited the publication of scandalous, defamatory, or malicious newspapers. Near was
sued under this law by someone the paper had frequently targeted. In a 5-4 decision, the U.S.
Supreme Court decided that the state’s statute was an infringement of the First Amendment.
The Court held that, except in rare cases, censorship is unconstitutional. This case made the
freedom of press protection applicable to the states, through the 14th Amendment, and
emphasized that prior restraint (preventing the publication of something in advance) is
almost always unconstitutional.

− Dennis v. United States (1951)

The Supreme Court upheld the Smith Act, which made it a criminal offense for a person or
group to advocate the violent overthrow of the government or to be a member of any group
that supports such advocacy. This case involved members of the American Communist
Party, which petitioned for socialist reforms. The Court said speech from a person or group
so grave it poses a vital threat to the security of the nation is not protected under the First
Amendment.

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 New York Times Co. v. United States (1971)

Arguments for the New York Times (petitioner)

− In the First Amendment, the Framers gave the press the protection it must have to fulfill its
essential role in democracy. People must have access to uncensored information in order to
make decisions and choose leaders. The press was created to serve the governed, not the
government.
− Congress has not made laws that abridge the freedom of the press in the name of national
security and presidential power. The courts should not take it upon themselves to make law
that would do so simply because the executive branch requests it.
− The newspaper did not publish the information in order to hurt the United States. Instead, it
published the information to help the country by informing citizens about their
government’s actions on an important public issue.
− Secrecy in government is fundamentally anti-democratic and perpetuates government
misdeeds or errors. Open, robust debate of public issues is vital to national health.
Publishing materials that reveal misjudgments, miscalculations, or mistakes made by
government officials is exactly why it is important to have a free press with unrestrained
publishing authority.

Arguments for the United States (respondent)

− During times of war, the executive branch must be given broad authority to restrict
publication of sensitive information that could harm U.S. national security.
− The judicial branch and the executive branch are co-equal branches of government. The
courts should refrain from passing judgment on the executive branch’s assessment of
national security and foreign affairs. The U.S. system of government rests on the concept of
separation of powers, and the Constitution assigns decisions about foreign affairs to the
political departments of the government—the executive and legislative branches.
− The newspapers knew the Pentagon Papers contained sensitive information that was
obtained illegally. Both media outlets could certainly anticipate that the government would
object to publication. It would have been reasonable to give the government an opportunity
to review the entire collection and determine whether agreement could be reached on which
sections of the papers could be published.
− One of the basic duties of every citizen is to report to police the discovery or possession of
stolen property or secret government documents. This duty applies to everyone equally—
from regular citizens to high officials and certainly also to the New York Times and the
Washington Post.

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 New York Times Co. v. United States (1971)

Decision
Only four days after hearing oral arguments, the Supreme Court ruled, 6-3, for the newspapers. The
Court issued a short majority opinion not publicly attributed to any particular justice—called a per
curiam (or “by the Court”) opinion—and each of the six justices in the majority (Justices Black,
Douglas, Stewart, White, Brennan, and Marshall) wrote a separate concurring opinion. Chief Justice
Burger and Justices Harlan and Blackmun each filed a dissenting opinion. It is one of the few
modern cases in which each of the nine Justices wrote an opinion.

Per Curiam
The Court reaffirmed its longstanding rule that “[a]ny system of prior restraints of expression comes
to this Court bearing a heavy presumption against its constitutional validity.” “The Government
thus carries a heavy burden of showing justification for the imposition of such a restraint.” The per
curiam opinion concluded, without analysis, that that “the Government had not met that burden” in
these cases.

Concurrences
Justice Black, in an opinion joined by Justice Douglas, expressed the view that a court can never
enjoin the publication of news consistent with the First Amendment. In his view, the First
Amendment’s freedom of the press is absolute, and “the press must be left free to publish news,
whatever the source, without censorship, injunctions, or prior restraints.” This freedom is part of
the basic constitutional structure: when creating the federal government, “the Founding Fathers
gave the free press the protection it must have to fulfill its essential role in our democracy,” in which
“[t]he press was to serve the governed, not the governors.” When the First Amendment says that
Congress shall pass “no law” abridging freedom of the press, it means “no law” not “some laws.”
And the government cannot evade this absolute command by invoking national security concerns:
“The word ‘security’ is a broad, vague generality whose contours should not be invoked to abrogate
the fundamental law embodied in the First Amendment.”
Justice Douglas, joined by Justice Black, wrote that the executive branch does not have any
“inherent power” to protect “national security” sufficient to overcome the heavy presumption
against the constitutionality of a prior restraint on publication.
Justice Brennan concurred to emphasize that the cases represented the first time in American history
that the government sought to enjoin a newspaper from publishing information in its possession,
and that none of the lower courts should ever have ruled for the government. Justice Brennan
recognized that there is only “a single, extremely narrow” exception to the prior restraint doctrine,
involving an imminent threat in a time of war, and that exception did not apply here.
Justice Stewart, joined by Justice White, recognized the government’s interest in “confidentiality and
secrecy,” but emphasized that it is primarily the executive branch’s obligation to protect its own
secrets. Because “I cannot say that the disclosure of any of [the documents] will surely result in

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 New York Times Co. v. United States (1971)

direct, immediate, and irreparable damage to our Nation or its people,” prohibiting publication
would violate the First Amendment.
Justice White, joined by Justice Stewart, emphasized that “I do not say that in no circumstances
would the First Amendment permit an injunction against publishing information about government
plans or operations.” He noted that the government had tools to punish leakers and drew a
fundamental distinction between such permissible punishment and an injunction against the
publication of the information by the press. He suggested that the government might even be able
to charge the newspapers with a crime for having published the information but held that this
possibility did not justify a prior restraint on the publication.
Justice Marshall concluded that no statute authorized the executive or judicial branch to enjoin the
publication of information on national security grounds, and that neither branch had the “inherent
power” to issue such an injunction. Congress’ authorization of criminal punishment for certain
disclosures is not tantamount to authorization to enjoin such disclosures.

Dissents
In his dissent, Chief Justice Burger complained that the Court had rushed its decision in the cases (it
accepted, heard, and decided them in less than a week) and that the justices (and the lower court
judges) “do not know the facts.” And, he argued, the facts are critical because “the First
Amendment right itself is not absolute.” Given his lack of knowledge of the facts, he declared that
he was “not prepared to reach the merits” of the cases and characterized the Court’s rushed decision
as “a parody of the legal process.”
Justice John Harlan, joined by Chief Justice Burger and Justice Blackmun, also complained that “the
Court has been almost irresponsibly feverish in dealing with these cases,” and the justices had not
had time to consider many of the “difficult questions of fact, of law, and of judgment.” He did,
however, reach the merits, and concluded that the judiciary did not have the right to second-guess
the executive branch on matters of national security beyond (1) satisfying itself that “the subject
matter of the dispute does lie within the proper compass of the President’s foreign relations power,”
and (2) insisting that “the determination that disclosure of the subject matter would irreparably harm
the national security be made by the head of the Executive Department concerned.”
Justice Blackmun emphasized that “[t]he First Amendment … is only one part of an entire
Constitution,” and that “Article II of the great document vests in the Executive Branch primary
power over the conduct of foreign affairs, and places in that branch the responsibility for the
Nation’s safety.” In his view, “[e]ach provision of the Constitution is important, and I cannot
subscribe to a doctrine of unlimited absolutism for the First Amendment at the cost of downgrading
other provisions.” He, therefore, would have sent the case back to the lower courts for a further
review of the documents and assessment of the national security implications of publishing them.

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 New York Times Co. v. United States (1971)

Impact
The Supreme Court’s decision in this case lifted the restraining order and allowed the New York
Times and the Washington Post to continue publishing the Pentagon Papers. These documents
revealed that the U.S. military was more involved in the wars in Southeast Asia than the public had
previously known. Ultimately, only about 5% of the documents were published in the New York
Times. The Pentagon Papers were declassified and made fully available to the public in 2011.
In 1973, Ellsberg was criminally charged with espionage, conspiracy, and theft for his role in
publishing the Pentagon Papers. However, the judge dismissed the case because the government
illegally obtained evidence against Ellsberg.
New York Times Co. v. United States is considered a victory for the First Amendment’s protections of
the free press against government censorship. The per curiam opinion shows that there is a “heavy
presumption against prior restraint,” meaning that it is very difficult for the government to prevent
information from being published, even in situations where national security may be at issue.
However, because there was no majority opinion in this case, some argue that the decision did not
protect the press enough and that there are remaining ways for the government to impose prior
restraints in the future.

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 Street Law Case Summary

Roe v. Wade (1973)

Argued: December 13, 1971
Reargued: October 11, 1972
Decided: January 22, 1973

Background
The Constitution does not explicitly guarantee a right to privacy. The word “privacy” does not
appear in the Constitution. However, the Bill of Rights includes protections for specific aspects of
privacy, such as the Fourth Amendment’s “right of the people to be secure in their persons, houses,
papers and effects” from unreasonable government searches and seizures and the Fifth
Amendment’s right to be free of compelled self-incrimination in criminal cases. In early rulings
about privacy, the Supreme Court connected the right to privacy to particular locations, with
emphasis on a person’s home as a private space where the government could not intrude without a
warrant. During the 21st century, the Court began interpreting the Constitution, including the Due
Process Clause of the 14th Amendment, as providing a broader right to privacy protecting people as
well as places. Over the decades the Court interpreted this right to privacy to include decisions about
child rearing, marriage, and birth control. This is a case about whether that constitutionally protected
right to privacy includes the right to obtain an abortion.
In the 19th and early 20th centuries, most states adopted laws banning or strictly regulating
abortion. Many people felt that abortion was morally or religiously wrong, and so many states
outlawed abortion except in cases where the mother’s life was in jeopardy. But illegal abortions were
widespread and often dangerous for women who underwent them because they were performed in
unsanitary conditions. Wealthier women could travel to states or other countries with looser laws to
obtain abortions, while poorer women often did not have that option. In the 1960s, a movement to
make abortion legal gained ground. The movement advocated for changes in state laws (and four
states did repeal their bans) and brought cases in courts challenging the abortion bans as
unconstitutional.

Facts
In 1969, a resident of Texas known as Jane Roe (a pseudonym used to protect her identity) wanted
to terminate her pregnancy. Texas law made it a felony (serious crime) to abort a fetus unless “on
medical advice for the purpose of saving the life of the mother.” Roe and her attorneys filed a
lawsuit on behalf of her and all other women who were or might become pregnant and seek
abortions. The lawsuit was filed against Henry Wade, the district attorney of Dallas County, Texas,
and claimed that the state law violated the U.S. Constitution.

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A three-judge federal District Court ruled the Texas abortion law unconstitutional under the Ninth
Amendment, which states that “[t]he enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people.” In particular, the District Court
concluded that “[t]he fundamental right of single women and married persons to choose whether to
have children is protected by the Ninth Amendment,” which applies to the states through the 14th
Amendment. The case was then appealed directly to the U.S. Supreme Court, which agreed to hear
it.

Issue
Does the U.S. Constitution protect the right of a woman to obtain an abortion?

Constitutional Amendments and Supreme Court Precedents

− Ninth Amendment to the U.S. Constitution

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people.”

− 14th Amendment to the U.S. Constitution

“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.”

− Griswold v. Connecticut (1965)

A married couple sought advice about contraception from a Planned Parenthood employee
named Griswold. Connecticut law criminalized providing counseling to married people for
the purpose of preventing conception. The Supreme Court ruled that the Connecticut law
violated the Constitution because it invaded the privacy of married couples to make
decisions about their families. The Court identified privacy as an important value,
fundamental to the American way of life and to the other basic rights outlined in the Bill of
Rights (including the First, Third, Fourth, and Ninth Amendments). Seven years later, the
Court decided a case that extended access to contraception to unmarried persons, as well.

− United States v. Vuitch (1971)

Washington, DC, had a law that prohibited abortions unless a woman’s life or health was
endangered by the pregnancy. Dr. Vuitch was arrested for violating that law, and he argued
that only a doctor (not a prosecutor) could determine whether an abortion was necessary to
protect a woman’s life or health. The Supreme Court did not overturn the DC law. Instead it
ruled that “health” should include both psychological and physical well-being.

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Arguments for Roe

− A woman’s right to privacy is implicitly guaranteed in the First, Fourth, Fifth, Ninth, and 14th
Amendments. As the Court ruled in Griswold, there are certain matters—including the
decision about whether to have a child—that are individual decisions protected by the
Constitution.
− Unwanted pregnancies can have a major impact on women’s lives. In the 1970s, women
could be asked to leave their jobs if they became pregnant, and most employers did not
provide maternity leave. Women could be endangering their careers or finances in addition
to their psychological and physical health by being forced to carry a pregnancy to term.
− Women in Texas who wish to have an abortion must either travel to another state where
abortion is legal or undergo an illegal abortion where conditions could be unsafe. Travel is
costly and inconvenient, thus making access to a safe, legal abortion more difficult for poor
women. Illegal abortions put women’s life, health, and well-being at risk.
− The law criminalizes a safe medical procedure, and it is too vague for doctors to know what
they may or may not do. Doctors must determine that a woman’s life is at risk in order to
perform a legal abortion, and their decision and professional interpretation of “at risk” could
land them in jail.
− An unborn fetus is not legally recognized as a person and does not have rights equal to the
mother. Abortions were more common in the 19th century, so it is clear that the framers of
the 14th Amendment did not intend to include fetuses in the definition of “persons.” No
Supreme Court case has established that a fetus is legally a person and, therefore, entitled to
constitutional rights.

Arguments for Wade

− There is no right to abortion guaranteed in the Constitution. It is mentioned nowhere in the
text, and there is no reason to believe that those who wrote the 14th Amendment intended to
protect that right.
− A fetus, from the date of conception, is a person and has constitutional rights. The state has
an important interest in protecting its future citizens. The right to life of the unborn child is
superior to the right to privacy of the mother. The balancing of the two interests should
favor the most vulnerable, the unborn child.
− In previous decisions where the Court protected individual or marital privacy, that right was
not absolute. All protected rights are subject to reasonable regulation, and Texas has a strong
interest in protecting life and protecting women’s health, so the abortion restrictions are
reasonable.

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 Roe v. Wade (1973)

− Abortion is different from contraception, so the Court’s decision in Griswold v. Connecticut

does not apply here. Contraception prevents creation of life whereas abortion destroys
existing life.
− Abortion is a policy matter best left to the state legislatures to decide. As elected officials,
legislators make laws that reflect the popular will and morality of the people—as they have
done here. The prohibition against abortion in Texas has existed since 1854.

Decision
In a 7-2 decision, the U.S. Supreme Court decided in Roe’s favor. Justice Blackmun wrote the
opinion of the Court, which recognized that a woman’s choice whether to have an abortion is
protected by the Constitution. Chief Justice Burger and Justices Stewart and Douglas wrote
concurring opinions. Justices White and Rehnquist wrote dissenting opinions.

Majority
The majority rooted a woman’s right to decide whether to have an abortion in the Due Process
Clause of the 14th Amendment, which prohibits states from “depriv[ing] any person of … liberty …
without due process of law.” According to the majority, the “liberty” protected by the 14th
Amendment includes a fundamental right to privacy. The majority began by surveying the history of
abortion laws and concluded that “the restrictive criminal abortion laws in effect in a majority of
States today are of relatively recent vintage,” and “are not of ancient or even of common-law
origin.” The Court then held that “[t]his right of privacy, whether it be founded in the Fourteenth
Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as
the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is
broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”
Further, after considerable discussion of the law’s historical lack of recognition of rights of a fetus,
the majority concluded “the word ‘person,’ as used in the Fourteenth Amendment, does not include
the unborn.” A woman’s right to choose to have an abortion falls within this fundamental right to
privacy and is protected by the Constitution.
While holding that “the right of personal privacy includes the abortion decision,” however, the
Court also emphasized that “this right is not unqualified and must be considered against important
state interests in regulation.” In particular, the Court noted, “[w]here certain ‘fundamental rights’ are
involved, the Court has held that regulation limiting these rights may be justified only by a
‘compelling state interest,’ and that legislative enactments must be narrowly drawn to protect only
the legitimate state interests at stake.” The Court recognized that “the State does have an important
and legitimate interest in preserving and protecting the health of a pregnant woman” and “still
another important and legitimate interest in protecting the potentiality of human life.” Striking a
balance between a woman’s fundamental right to privacy and these state interests, the Court set up a
framework laying out when states could regulate and even prohibit abortions.

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 Roe v. Wade (1973)

Under that framework, in the first trimester (the first three months of the pregnancy), a woman’s
right to privacy surrounding the choice to have an abortion outweighs a state’s interests in regulating
this decision. During this stage, having an abortion does not pose a grave danger to the mother’s life
and health, and the fetus is still undeveloped. The state’s interests are not yet compelling, so it
cannot regulate or prohibit her from having an abortion. During the second trimester, the state’s
interests become more compelling as the danger of complications increases and the fetus becomes
more developed. During this stage, the state may regulate, but not prohibit, abortions, as long as the
regulations are aimed at protecting the health of the mother. During the third trimester, the danger
to the woman’s health becomes the greatest and fetal development nears completion. In the final
trimester, the state’s interests in protecting the health of the mother and in protecting the life of the
fetus become their most compelling. The state may regulate or even prohibit abortions during this
stage, as long as there is an exception for abortions necessary to preserve the life and health of the
mother.

Concurrences
Three justices filed concurring opinions in the case. Justice Stewart emphasized that the Court was
basing its holding on the so-called “substantive” component of the Due Process Clause of the 14th
Amendment. Justice Douglas rejected Justice Stewart’s invocation of “substantive” due process, but
he agreed that the constitutional right at issue was based in the term “liberty” in the Due Process
Clause of the 14th Amendment. Chief Justice Burger underscored that “the Court today rejects any
claim that the Constitution requires abortions on demand.”

Dissents
Two justices filed dissenting opinions. In his dissenting opinion, Justice White, joined by Justice
Rehnquist, argued that he found “nothing in the language or history of the Constitution to support”
the right to an abortion. He characterized the decision as “an extravagant and improvident exercise
of the power of judicial review that the Constitution extends to this Court,” and noted that the
decision prevents the people and the legislatures of the states from “weighing the relative
importance of the continued existence and development of the fetus, on the one hand, against a
spectrum of possible impacts on the mother, on the other hand.” Justice Rehnquist filed a separate
dissenting opinion, arguing that abortion did not fit within the right of “privacy” recognized in the
Court’s previous cases and characterizing the decision as “partak[ing] more of judicial legislation
than … a determination of the intent of the drafters of the Fourteenth Amendment.”

Impact
The immediate impact of the decision in Roe v. Wade was the striking down of laws that banned or
severely restricted abortions in 30 states, including Texas.
Since Roe v. Wade, several states have passed laws regulating abortion; these are often challenged in
court. The decision in Roe v. Wade acted as precedent for several later decisions regarding abortion,

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such as Planned Parenthood of Southeastern Pennsylvania v. Casey, Gonzales v. Carhart, Whole Woman’s Health
v. Hellerstedt, and June Medical Services v. Russo. The decisions in these cases upheld Roe v. Wade but
allowed for some restrictions like waiting periods and parental notification for minors. Although the
Supreme Court no longer uses the trimester framework declared in Roe v. Wade, the Court has
continued to rule that laws placing an undue burden on women seeking abortions are
unconstitutional despite permitting some restrictions on the procedure.

Additional information about Roe v. Wade, including background at three reading levels, opinion
quotes and summaries, teaching activities, and additional resources, can be found at
https://www.landmarkcases.org/.

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 Street Law Case Summary

Schenck v. United States (1919)

Argued: January 9–10, 1919
Decided: March 3, 1919

Background
The First Amendment to the U.S. Constitution protects the freedom of speech. However, like all
rights protected by the Constitution, this right is not absolute. The government can place reasonable
limits on protected rights in many instances. How much the government can limit free speech
depends on the context including the time, manner, and place the speech occurs. Generally, the
government cannot control the content of someone’s speech. At various points in history, the
government has argued that national security concerns or times of war permit the government to
place additional restrictions on speech. Two months after the United States formally entered World
War I, Congress passed the Espionage Act of 1917. Many elected officials were worried about the
presence of foreign spies or American sympathizers with enemies of the Unites States. The
Espionage Act stated, “Whoever, when the United States is at war, … shall willfully obstruct the
recruiting or enlistment service of the United States, to the injury of the service or of the United
States, shall be punished by a fine of not more than $10,000 or imprisonment for not more than
twenty years, or both.” A number of Americans were arrested and convicted under this law during
World War I.
In this case the Supreme Court had to decide whether the speech that was punished for violating the
Espionage Act was protected by the First Amendment.

Facts
Charles T. Schenck was the general secretary for the Socialist Party chapter in Philadelphia. He was
convicted of violating the Espionage Act after printing and mailing 15,000 fliers to draft-age men
arguing that conscription (the draft) was unconstitutional and urging them to resist. Elizabeth Baer,
a fellow executive committee member of the chapter, was also convicted.
On the side of the flier entitled “Long Live the Constitution of the United States,” the Socialist
Party argued that conscription was a form of “involuntary servitude” and thereby outlawed by the
13th Amendment. Schenck’s flier also implored its recipients “to write to your Congressman and tell
him you want the [conscription] law repealed. Do not submit to intimidation. You have the right to
demand the repeal of any law. Exercise your rights of free speech, peaceful assemblage, and
petitioning the government for a redress of grievances.”
On the reverse side entitled “Assert Your Rights!”, Schenck adopted more fiery language. He
implored his audience to “do your share to maintain, support and uphold the rights of the people of

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 Schenck v. United States (1919)

this country” or else “you are helping condone a most infamous and insidious conspiracy” fueled by
“cunning politicians and a mercenary capitalist press.”
In 1917, after Schenck’s conviction for violating the Espionage Act, he asked the trial court for a
new trial. This request was denied. He then appealed to the U.S. Supreme Court, which agreed to
review his case in 1919.

Issue
Did Schenck’s conviction under the Espionage Act for criticizing the draft violate his First
Amendment free speech rights?

Constitutional Provisions and Federal Statute

− First Amendment to the U.S. Constitution

“Congress shall make no law… abridging the freedom of speech, or of the press; or the right
of the people peaceably to assemble, and to petition the Government for a redress of
grievances.”

− Espionage Act, Section 3

“Whoever, when the United States is at war, … shall willfully cause or attempt to cause
insubordination, disloyalty, mutiny, refusal of duty, in the military or naval forces of the
United States, or shall willfully obstruct the recruiting or enlistment service of the United
States, to the injury of the service or of the United States, shall be punished by a fine of not
more than $10,000 or imprisonment for not more than twenty years, or both.”

Arguments for Schenck (petitioner)

− The First Amendment not only prevents Congress from prohibiting criticism of government
action, it also protects the speaker from punishment after the expression.
− The First Amendment must protect the free discussion of public matters. This practice helps
hold government officials accountable and promotes transparency. Schenck was simply
sharing his opinions about important government actions and policies.
− There is an important difference between words and actions. While the government may
punish those who refuse to serve in the military once drafted (action), the effort to persuade
people not to serve is protected by the Constitution as speech (words).
− Schenck exercised his free speech rights to communicate his opinions on important public
issues. He was not directly calling on readers to break the law, only to exercise their right to
redress grievances by writing their Congressional representatives.

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 Schenck v. United States (1919)

Arguments for the United States (respondent)

− Congress is empowered to declare war and ensure the functioning of the U.S. military. In a
time of war, it may limit the expression of opinions if necessary to make sure the military
and government can function—which includes the necessary recruitment and enlistment of
soldiers.
− In distributing the flier, Schenck and Baer possessed a clear intent to persuade others to not
enlist. That is a violation of the Espionage Act, which prohibits “willfully…obstruct[ing] the
recruiting or enlistment service of the United States.”
− War time is different from peace time; during war the government should have extra power
to ensure the safety and security of the American people, even if that means limiting certain
kinds of speech.

Decision
Justice Oliver Wendell Holmes delivered the unanimous opinion (9-0) for the Court in favor of the
United States, joined by Chief Justice White and Justices McKenna, Day, van Devanter, Pitney,
McReynolds, Brandeis, and Clarke.
Justice Holmes accepted the possibility that the First Amendment did not only prevent Congress
from exercising prior restraint (preemptively stopping speech). He said that the First Amendment
could also be interpreted to prevent the punishment of speech after its expression.
Yet, according to Holmes, “the character of every act depends upon the circumstances in which it is
done.” In the context of the U.S. effort to mobilize for entry into World War I, the Espionage Act’s
criminalization of speech that caused or attempted to cause a disruption of the operation of the
military was not a violation of the First Amendment. According to Holmes, “when a nation is at
war, many things that might be said in time of peace are such a hindrance to its effort that their
utterance will not be endured so long as men fight and that no Court could regard them as protected
by any constitutional right.”
Holmes held that some speech does not merit constitutional protection. He said that statements that
“create a clear and present danger” of producing a harm that Congress is authorized to prevent, fall
in that category of unprotected speech. Just as “free speech would not protect a man in falsely
shouting fire in a theatre and causing a panic,” the Constitution does not protect efforts to induce
the criminal act of resisting the draft during a time of war.

Impact
Schenck fashioned a new and important rule. It allowed Congress to authorize the punishment of
speech based on both its content and viewpoint. The “clear and present danger” test provided
the framework for future cases brought against independent and spirited speakers under both
the Espionage Act and similar state laws. Under the “clear and present danger” test, the

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 Schenck v. United States (1919)

government typically won, and the speakers almost always lost. In later cases Justice Holmes
argued that the best way to counteract “bad” speech was through more and better speech. He called
this the “marketplace of ideas” rationale for freedom of speech, explaining that free debate was
essential to a democratic society.
The Court moved away from the “clear and present danger” test in a 1969 case called Brandenburg v.
Ohio, which involved a Ku Klux Klan member who gave a speech that was derogatory towards
African Americans and Jewish people while burning a cross in an open field. In
particular, Brandenburg v. Ohio fashioned the rule that now governs any action against a speaker
for their speech, requiring that the statements in question be 1) “directed at inciting or
producing imminent lawless action” and 2) “likely to incite or produce such action.” This and
later rulings were more protective of free speech rights than the “clear and present danger” test
established in Schenck.

Additional information about Schenck v. United States, including background at three reading levels,
opinion quotes and summaries, teaching activities, and additional resources, can be found at
https://www.landmarkcases.org/.

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 Street Law Case Summary

Shaw v. Reno (1993)

Argued: April 20, 1993
Decided: June 28, 1993

Background
After the Civil War, the 13th, 14th, and 15th Amendments ended slavery, granted citizenship to
formerly enslaved persons, and gave African American men the right to vote. Soon thereafter, state
governments, primarily in the South, institutionalized “Black Codes” and Jim Crow laws to prevent
formerly enslaved people from voting. Poll taxes, literacy tests, and felon disenfranchisement were
among the practices commonly used to suppress African American voting.
In order to prevent states from suppressing the right of African Americans and other racial
minorities to vote, Congress passed the Voting Rights Act in 1965. This law prohibited voting rules
that discriminated on the basis of race. The law also placed cities, counties, and states with a history
of discriminatory practices in a special category. These jurisdictions had to request pre-clearance
from the federal government before changing their voting rules and were required to prove that the
proposed change did not limit a person’s right to vote because of their race. The courts concluded
that the Voting Rights Act, including this “pre-clearance” requirement, applied to the drawing of
legislative district boundaries, which each state must do every 10 years to account for changing
populations. While states generally can adopt their own criteria for districting—which typically
include making districts that are reasonably compact and contiguous (where all parts of the district
are connected to one another) and that align with existing geographical boundaries like cities or
counties—they may not draw districts in a way that discriminates on the basis of race.
In Thornburg v. Gingles (1986), the Supreme Court ruled that if voting is racially polarized, and if a
racial minority group is both large enough and geographically compact enough to make up a
majority of the voters in a new district, then the Voting Rights Act requires the district to be drawn
to comprise a majority of minority voters—i.e., to be drawn as a “majority-minority” district. The
Court concluded that drawing majority-minority districts in such circumstances is necessary to give
minority groups “the opportunity to elect their candidate of choice.”

Facts
Between 1865 and 1993, the state of North Carolina elected only seven African Americans to the
U.S. House of Representatives. In 1990, none of the state’s 11 members of Congress were Black,
while 20% of the state’s population was. After the 1990 census, the state gained a 12th Congressional
seat, and the state legislature tried to ensure the election of an African American representative
through the creation of a legislative district that would be majority African American. Of North
Carolina’s 100 counties, 40 were covered by the Voting Rights Act requirement that redistricting

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plans be pre-cleared by the federal government, so the state submitted its plans to the U.S.
Department of Justice. The attorney general rejected the North Carolina state legislature’s first
redistricting plan because it created only one majority-minority district. The Department of Justice
said that a second majority-minority district could also be created.
The General Assembly (North Carolina’s legislature) redrew the district lines to create a second
majority-minority district, District 12. District 12 ran along Interstate 85 in snake-like fashion for
160 miles, breaking up several counties, towns, and districts to connect geographically separate areas
densely populated by minority voters into a single district that, in some places, was only as wide as
the highway. The attorney general did not object to this new districting plan. In 1992, Melvin
Watt—an African American—won the 12th district.
A group of voters filed a lawsuit against both state and federal officials in the U.S. District Court for
the Eastern District of North Carolina. They argued that District 12 violated the 14th Amendment’s
Equal Protection Clause because it was motivated by racial discrimination and resulted in a district
drawn almost entirely on racial lines, with the sole purpose of electing Black Congressional
representatives. The District Court dismissed the case, concluding that using race-based districting
to benefit minority voters does not violate the Constitution. The voters appealed to the Supreme
Court, which is required by law to hear most redistricting cases.

Issue
Did the North Carolina residents’ claim that the 1990 redistricting plan discriminated on the basis of
race raise a valid constitutional issue under the 14th Amendment’s Equal Protection Clause?

Constitutional Amendments and Supreme Court Precedents

− 14th Amendment to the U.S. Constitution

“Nor shall any state…deny to any person within its jurisdiction the equal protection of the
laws.”

− 15th Amendment to the U.S. Constitution

“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.”

− Gomillion v. Lightfoot (1960)

In 1957, the Alabama legislature decided to redraw the boundaries of the city of Tuskegee.
While the city had long been shaped as a square, the legislature redrew it as “a strangely
irregular twenty-eight-sided figure.” The result of this redistricting was to remove all but four
or five of the city’s 400 Black voters from its boundaries, while removing no White voters or
residents. The Black voters sued, but the lower courts dismissed their case, concluding that
courts have no power to interfere with how state legislatures draw district lines. The U.S.

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Supreme Court reversed. The Court found it difficult to explain the bizarrely shaped district
as anything other than an effort to segregate African American voters and deprive them of
their right to vote. The Court concluded that courts have the power under the 15th
Amendment to invalidate districts that are drawn to abridge the right to vote on the basis of
race.

− United Jewish Organizations of Williamsburgh, Inc. v. Carey (1977)

A Hasidic Jewish community in New York was divided into two districts as a result of a
reapportionment plan that reorganized several districts to achieve a minimum non-White
representation of 65% in each district. The U.S. Supreme Court upheld the plan, holding
that considering race when drawing districts does not necessarily violate the 14th or 15th
Amendments. Although New York deliberately increased non-White majorities, the Court
concluded that this use of racial criteria was permissible because there was no “fencing out”
of the White population in the county from participating in the election processes, and
White people were not subsequently underrepresented relative to their representation of the
population.

Arguments for Shaw (petitioner)

− The Constitution is “color-blind,” meaning it prohibits using race as the basis for how to
draw districts. This redistricting plan is the opposite of color-blind and amounts to
unconstitutional discrimination on the basis of race.
− The snake-like shape of District 12 makes it neither compact nor truly contiguous, which are
the traditional criteria for district maps. The legislature’s obvious disregard for these criteria
confirms that its sole purpose was to create a seat to represent a particular racial group.
− In Gomillion v. Lightfoot (1960), the Court held that dividing voters into districts on the basis
of race is impermissible racial segregation. That does not change just because race is used to
advance the interests of a minority group rather than limit them.
− Drawing districts on the basis of race advances the stereotype that Black voters will only
vote for a Black candidate and White voters for a White candidate. Minority voters have
different views and interests and do not necessarily have a single, unified “candidate of
choice.”

Arguments for Reno (respondent)

− The courts have ruled that the use of race in redistricting is permissible and might even be
more important than traditional districting features such as contiguousness and
compactness, as long as the configurations are not too extreme. Oddly shaped districts are
sometimes necessary if states are to elect representatives who are reflective of the people of
the state.

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 Shaw v. Reno (1993)

− The Voting Rights Act of 1965 encourages the creation of districts with majorities of African
American, Hispanic, and other minority voters, especially where there has been voting
discrimination in the past.
− In Gomillion v. Lightfoot (1960), the Court held that districts cannot be drawn to discriminate
against minorities. But that does not mean that race cannot be used to draw districts that
advance the interests of minorities.
− In United Jewish Organizations of Williamsburgh, Inc. v. Carey, the Court approved “racial
redistricting where appropriate to avoid abridging the right to vote on account of race.” The
Court found that the White voters’ constitutional rights were not violated because they were
not deprived of effective representation or the right to vote.

Decision
In a 5-4 decision, the U.S. Supreme Court decided in favor of Shaw and sent the case back to the
lower court to be reheard. Justice O’Connor authored the majority decision, which was joined by
Chief Justice Rehnquist and Justices Scalia, Kennedy, and Thomas. Justices White, Blackmun,
Stevens, and Souter dissented.

Majority
Justice O’Connor detailed the troublesome history of racial gerrymandering and explained how
North Carolina District 12 was similar in many ways to past districts that had been held
unconstitutional, like the bizarrely shaped district in Gomillion. The justices said that classifications of
citizens predominantly on the basis of race are undesirable in a free society and conflict with the
American political value of equality.
The majority said that any redistricting plan that includes people in one district who are
geographically disparate and share little in common with one another but their skin color, bears a
strong resemblance to racial segregation. They wrote that racial classifications of any sort promote
the belief that individuals should be judged by the color of their skin. They also said that drawing
districts to advance the perceived interests of one racial group may lead elected officials to see their
obligation as representing only members of that group, rather than their constituency as a whole.
The justices concluded that racial gerrymandering, even for remedial purposes, may “balkanize us
into competing racial factions; it threatens to carry us further from the goal of a political system in
which race no longer matters.”
The Court was tasked with deciding the grounds on which voters could challenge voting districts as
racial gerrymanders. They decided that if a redistricting plan cannot rationally be understood as
anything other than an effort to divide voters based on their race, voters may challenge such a
district under the Equal Protection Clause. Therefore, the case was sent back to the lower court to
determine if the North Carolina plan could be justified in terms other than race.

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 Shaw v. Reno (1993)

Dissents
In a series of separate dissents, the dissenters argued that consideration of race in the districting
process is inevitable, and that it does not violate the Constitution unless the party challenging a
district shows that the district was drawn in a way that deprives a racial group of an equal
opportunity to participate in the political process. Some of the dissenters also argued that there are
legitimate reasons to consider race because people of the same race share interests and often vote
together, and that race-conscious gerrymandering only violates the Equal Protection Clause if the
purpose of those drawing the boundaries is to enhance the power of the group in control of the
process, at the expense of minority voters.

Impact
After the Supreme Court sent the case back to the lower court, it determined that North Carolina’s
redistricting plan did not violate the Constitution because the state had a compelling, or very strong,
interest in complying with the Voting Rights Act’s guarantee that a person’s vote cannot be limited
or taken away due to their race. However, the case returned to the Supreme Court, this time as Shaw
v. Hunt, and in June 1996, the Court struck down North Carolina’s plan. The Court discussed the
fact that District 12 was drawn so oddly that it could not be explained by factors other than race. In
a 5-4 decision written by Chief Justice Rehnquist, the Court concluded that the map’s racially drawn
lines violated the Equal Protection Clause and did not serve a compelling interest. To this day,
courts use Shaw v. Reno to show that using race to make decisions about voting districts, school
districts, and housing laws may be unconstitutional under the Equal Protection Clause, unless there
is a compelling government interest other than race.

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 Street Law Case Summary

Tinker v. Des Moines Independent

Community School District (1969)
Argued: November 12, 1968
Decided: February 24, 1969

Facts
In 1966, in Des Moines, Iowa, five students ages 13–16 decided to show opposition to the Vietnam
War. The students planned to wear two-inch-wide black armbands to school for two weeks. The
school district found out about the students’ plan and preemptively announced a policy that any
student who wore a black armband, or refused to take it off, would be suspended from school after
the student’s parents were called.
Mary Beth Tinker, an eighth grader, and John Tinker and Christopher Eckhardt, both high school
students, wore black armbands to their respective schools. All three teens were sent home for
violating the announced ban and told not to return until they agreed not to wear the armbands.
Their parents filed suit against the school district for violating the students’ First Amendment right
to free speech. The federal District Court dismissed the case and ruled that the school district’s
actions were reasonable to uphold school discipline. The U.S. Court of Appeals for the Eighth
Circuit agreed with the District Court. The Tinkers asked the U.S. Supreme Court to review that
decision, and the Court agreed to hear the case.

Issue
Does a prohibition against the wearing of armbands in public school as a form of symbolic speech
violate the students’ freedom of speech protections guaranteed by the First Amendment?

Constitutional Amendments and Supreme Court Precedent

− First Amendment to the U.S. Constitution

“Congress shall make no law . . . abridging the freedom of speech . . . . ”

− 14th Amendment to the U.S. Constitution

“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 . . . .”

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 Tinker v. Des Moines (1969)

− West Virginia State Board of Education v. Barnette (1943)

The West Virginia Board of Education required that all public schools include a salute of the
American flag as a part of their activities. All teachers and pupils were required to salute the
flag. If they did not, they could be charged with “insubordination” and punished. Students
who were Jehovah’s Witnesses and had a religious objection to saluting the flag sued the
state board of education. The Supreme Court ruled that this mandatory salute was
unconstitutional. The Court said that a flag salute was a form of speech because it was a way
to communicate ideas. The justices ruled that, in most cases, the government could not
require people to express ideas that they disagree with.

Arguments for Tinker (petitioner)

− Students, whether in school or out of school, are “persons” under the Constitution. They
possess fundamental rights that all levels of government must respect.
− Public schools are part of state government. The 14th Amendment protects people from
state infringement of their First Amendment rights to free speech.
− Wearing the armbands was a form of speech. It was a silent, passive expression of opinion.
− The students’ speech was not disruptive. The school district gave no evidence that the
armbands were a distraction or disrupted the learning process. Just because the schools were
afraid that there might be a disruption is not enough to infringe students’ speech.
− The students wearing the armbands did not infringe any other student’s rights. Wearing the
armbands did not intrude upon the work of the schools, teachers, or other students.
− Schools are meant to act as an environment for discourse and a forum for different ideas;
allowing students the ability to express their ideals is an inevitable part of the educational
process.

Arguments for Des Moines Independent Community School District (respondent)

− Free speech is not an absolute right. The First Amendment does not say that anyone may say
anything, at any place, at any time. Schools are not an appropriate forum for protest.
− The function of a school is to teach the curriculum. Students in academic classes could have
been distracted from their lessons by the armbands. The school district has a legitimate
interest in ensuring that instruction remains the focus of classrooms and, to that end, acted
within appropriate authority to prohibit the armbands.
− The Vietnam War is a controversial issue. Wearing the armbands could be an explosive
situation that disrupts learning. It is the school district’s duty to prevent substantial and
serious disruption to the learning environment.

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 Tinker v. Des Moines (1969)

− Voicing controversial opinions in class or in school areas such as the hallways, lunchrooms,
and gym classes may lead to bullying or violence directed against the protesting students. It is
the responsibility of the schools to prevent such behavior and protect the safety of all
students.
− The school district did not ban all types of expressions, just the armbands. They were
banned because of their inflammatory nature and potential for significant disruption.
Students could still express opinions in other ways. For example, they could wear political
emblems such as “Vote for Candidate X” buttons.
− If the Supreme Court rules in favor of the students, it would be overstepping its bounds and
interfering with state and local government powers that govern day-to-day school
operations.

Decision
The Supreme Court ruled in favor of the Tinkers, 7-2. Justice Fortas wrote the majority opinion for
the Court and was joined by Chief Justice Warren and Justices Douglas, Brennan, Stewart, White,
and Marshall. Justices Black and Harlan dissented.

Majority Opinion
The justices said that students retain their constitutional right to freedom of speech while in public
schools. They said that wearing the armbands was a form of speech, because they were intended to
express the wearer’s views about the Vietnam War. The Court said, “First Amendment rights,
applied in light of the special characteristics of the school environment, are available to teachers and
students. It can hardly be argued that either students or teachers shed their constitutional rights to
freedom of speech or expression at the schoolhouse gate . . . .”
The Court stressed that this does not mean that schools can never limit students’ speech. If schools
could make a reasonable prediction that the speech would cause a “material and substantial
disruption” to the discipline and educational function of the school, then schools may limit the
speech. This has become known as the “Tinker test.” In this case, though, there was no evidence
that the armbands would substantially interfere with the educational process or with other students’
rights.

Dissent
In the primary dissent, Justice Black said that the First Amendment does not give people the right to
express any opinion at any time. He said that a person does not “carry with him into the United
States Senate or House, or into the Supreme Court, or any other court, a complete constitutional
right to go into those places contrary to their rules and speak his mind on any subject he pleases. It
is a myth to say that any person has a constitutional right to say what he pleases, where he pleases,
and when he pleases. Our Court has decided precisely the opposite.”

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 Tinker v. Des Moines (1969)

The armbands, he argued, did cause a disturbance, by taking students’ minds of their classwork and
diverting them to “the highly emotional subject of the Vietnam War.” A ruling that limits school
officials’ ability to maintain order and discipline would negatively affect their ability to run the
school. School discipline is an important part of training children to become good citizens. Schools,
he warned, could become beholden to “the whims and caprices of their loudest-mouthed …
students.”

Impact
As an adult, Mary Beth Tinker promotes youth activism. She visits schools around the United
States to talk about Tinker v. Des Moines and tell students about their rights.
Tinker v. Des Moines is still an important decision about free speech rights in schools. Recently,
the “Tinker test” has been used in cases holding that students were allowed to wear cancer
awareness bracelets and that schools could prohibit students from displaying the Confederate
flag. Although the decision in Tinker v. Des Moines expanded free speech rights for students in
schools, other Supreme Court decisions, such as Bethel School District v. Fraser, Hazelwood School
District v. Kuhlmeier, and Morse v. Frederick have limited Tinker’s application and have given school
officials more discretion in punishing student speech.

Additional information about Tinker v. Des Moines, including background at three reading levels,
opinion quotes and summaries, teaching activities, and additional resources, can be found at
https://www.landmarkcases.org/.

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 Street Law Case Summary

United States v. Lopez (1995)

Argued: November 8, 1994
Decided: April 26, 1995

Background
The U.S. Constitution sets up a system of government in which the federal government and the
states share power. The powers of the federal government are limited and are described in the
Constitution. Other powers, not delegated to the federal government, are reserved for the states.
Article 1, Section 8, of the Constitution lists many of Congress’ powers, including the power to
create post offices, raise an army, coin money, and declare war. One of Congress’ broadest powers is
the power to regulate commerce among the states, and many of the laws Congress passes depend on
this power. In this case, however, it is argued that Congress passed a law that exceeded this
constitutional power.

Facts
In 1990, Congress passed the Gun-Free School Zones Act (GFSZA). In an effort to reduce gun
violence in and around schools, the GFSZA prohibited people from knowingly carrying a gun in a
school zone. A school zone was defined as any area within 1,000 feet of a school. A 12th-grade
student, Alfonso Lopez Jr., was convicted of possessing a gun at a Texas school. Lopez appealed his
conviction, arguing that Congress never had the authority to pass the GFSZA in the first place. The
U.S. Court of Appeals for the Fifth Circuit agreed with Lopez and reversed his conviction. The U.S.
government asked the Supreme Court to hear the case, and the Court agreed to do so.

Issue
Did Congress have the power to pass the Gun-Free School Zones Act?

Constitutional Clauses and Supreme Court Precedents

− Article 1, Section 8, Clause 3 (The Commerce Clause) of the U.S. Constitution

“The Congress shall have the power … to regulate Commerce with foreign Nations, and
among the several States, and with the Indian Tribes…”

− Article 1, Section 8, Clause 18 (The Necessary and Proper Clause) of the U.S.
Constitution
“The Congress shall have the power … to make all laws which shall be necessary and proper
for carrying into execution the foregoing powers, and all other powers vested by this

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 United States v. Lopez (1995)

Constitution in the Government of the United States, or in any Department or Officer

thereof.”

− Wickard v. Filburn (1942)

In an effort to increase wheat prices during the Great Depression, Congress passed a law
limiting the amount of wheat that some farmers could grow. One farmer argued that
Congress could not use the Commerce Clause to stop him from growing wheat for personal
consumption because that wheat would not be sold and, therefore, would not be part of
interstate commerce. The Supreme Court ruled that Congress could regulate a farmer’s
personal wheat crop because the production of wheat is a commercial activity that has
interstate consequences. The Court reasoned that Congress may regulate intrastate activities
that, if taken all together, would substantially affect interstate commerce. If many farmers
decided to grow their own wheat and not buy it on the market, they would substantially
affect interstate commerce.

− Heart of Atlanta Motel v. Unites States (1964)

The Civil Rights Act of 1964 made racial discrimination in public places, including hotels,
illegal. An Atlanta hotel that refused to serve African American customers argued that
Congress did not have the power to pass the Act under the Commerce Clause. The Supreme
Court ruled against the hotel, concluding that “commerce” includes travel from state to state
and that racial discrimination in hotels can affect travel from state to state. Congress can,
therefore, prohibit discrimination in hotels because, in the aggregate, it affects interstate
commerce.

Arguments for the United States (petitioner)

− Congress had the authority to pass the GFSZA under the Commerce Clause. The Supreme
Court ruled in Wickard and Heart of Atlanta Motel that Congress can regulate things that are
not by themselves interstate commerce if, when accumulated together, they affect interstate
commerce.
− Although possession of a gun in a school zone is not a direct form of interstate commerce, it
can be classified as commerce because the costs associated with violent crime are substantial
and affect many people across the country.
− The presence of guns near schools also negatively affects students’ ability to learn, which will
impede their future success and thus affect the economy of the nation.
− Insurance costs for activities related to gun violence are high and gun violence at schools
interferes with the willingness of people to travel to some parts of the country. Both of these
activities, insurance and travel, are forms of commerce.

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 United States v. Lopez (1995)

− The GFSZA does not encroach on state authority, as most states had their own laws
prohibiting possession of guns on school property. Federal regulation in this case is
concurrent with state regulation and does not displace it.

Arguments for Lopez (respondent)

− The GFSZA is not related to interstate commerce. The Constitution says that Congress can
only pass certain types of laws, including laws that regulate “interstate commerce.”
Commerce means commercial activities, and this law is not related to any commercial
activities.
− The GFSZA is not like the law at issue in Wickard, which was about buying and selling
crops, nor is it like the laws in Heart of Atlanta Motel, which were about customers paying for
hotel rooms. Those are both economic activities.
− Mere possession of a gun at or near a school is not a form of commerce and does not
involve more than one state.
− If mere possession of an object were classified as commerce, then anything could be
classified as commerce. This would give Congress virtually unlimited powers; there would be
no limits to the reach of the national government in a federal system.
− The Constitution limited Congress’ power to make laws for a reason. Some things are best
left to the states. If Congress could call possession of a gun “interstate commerce,” then
Congress would be allowed to regulate anything, and the states will have less authority to set
their own laws.
− Different communities have different needs and standards. It should be up to states to
decide whether people may carry guns near schools.

Decision
The Supreme Court ruled in favor of Lopez, 5-4. Chief Justice Rehnquist wrote the majority opinion
for the Court and was joined by Justices O’Connor, Kennedy, Scalia, and Thomas. Justices
O’Connor and Thomas filed separate concurring opinions. Justices Breyer, Ginsburg, Stevens, and
Souter dissented.
The Supreme Court ruled that the law exceeded Congress’ authority under the Commerce Clause
because carrying a gun in a school zone is not an economic activity. It said that Congress may regulate
only:
− Channels of interstate commerce, including highways, waterways, and air traffic.
− People, machines, and things moving in, or used in carrying out, interstate commerce.
− Economic activities that have a substantial effect on interstate commerce.

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 United States v. Lopez (1995)

The Court rejected the government’s argument that merely because crime negatively affected
education, Congress could conclude that crime in schools affects commerce in a substantial way.
Finally, the opinion stated that the Constitution created a national government with only limited,
delegated powers. To claim that any kind of activity is commerce means that the power of Congress
would be unlimited, which directly contradicts the principle of limited government and explicit
powers. As the Court explained, “Thus, if we were to accept the Government’s arguments, we are
hard pressed to posit any activity by an individual that Congress is without power to regulate.”

Dissent
Justice Breyer argued that the Commerce Clause includes the right to regulate local activity so long
as the activity significantly affects interstate commerce. In addition, the Court must consider the
cumulative effect of regulations, not just one instance. Finally, he argued, the Court’s role is not to
determine if an activity like possession of a gun was commerce but instead if Congress had a
“rational basis” for doing so.
Justice Stevens filed a separate dissent, arguing that the national interest in safeguarding the
education system would benefit the overall economy, which provided sufficient authority under the
Commerce Clause to protect against gun possession near schools.
Justice Souter’s separate dissent emphasized his view that the courts should defer to Congress’
informed judgment about the potential economic effects of activity that Congress seeks to regulate,
so long as there is a “rational basis” for the judgment that Congress has made.

Impact
Following the Court’s decision, Congress revised the GFSZA in June 1995. These changes require
that when the government prosecutes someone under the GFSZA, it must prove that at least one of
the guns involved in the crime moved in or affected interstate commerce. Since the GFSZA was
rewritten, courts across the country have upheld it.
United States v. Lopez is important because it was the first time since 1937 that the Court held that
Congress surpassed its powers under the Commerce Clause. Lopez is considered to be the beginning
of a new phase of federalism that strengthened the role of state and local governments in lawmaking
sometimes called the “Devolution Revolution.”

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 Street Law Case Summary

Wisconsin v. Yoder (1972)

Argued: December 8, 1971
Decided: May 15, 1972

Background
The First Amendment protects the right of people to exercise their religion freely. This means that
the government cannot outlaw any religious beliefs. Sometimes, however, conduct related to those
beliefs conflicts with government laws and regulations. In these cases, courts are asked to rule on
whether the government is allowed to forbid some conduct required by someone’s religious belief or
compel conduct that is forbidden by that belief. This is a case about the free exercise of the religious
beliefs of the Amish community.

The Amish view individualism, competition, and self-promotion as vices that separate members
from God, one another, and their own salvation. In order to preserve these values, each rural
community seeks to become largely self-sufficient, providing for its members’ needs with minimal
support from those outside the community. These beliefs led many communities to stop formal
education, in the form of public, private, or home-schooling, for their children after the age of 14.
For generations their approach aligned with state and local laws related to the number of years
children were required to be in school. In the mid-20th century, however, many U.S. states raised the
age to which children must attend school, and it created conflict with Old Order Amish practices.

Facts
The state of Wisconsin convicted three members of Old Order Amish communities for violating the
state’s compulsory education law, which requires attendance at school until the age of 16. Frieda
Yoder and two other students had stopped attending school at the end of eighth grade. The Amish
claimed that their religious faith and their mode of life are inseparable and interdependent. They
sincerely believe that exposure to competitive pressures of formal schooling, the content of higher
learning, and removal from their religiously infused practices of daily life will endanger children’s
salvation, the parents’ own salvation, and the continuation of the Amish community itself. The
Amish community provides an alternative education that adequately prepares children for their adult
roles within their community. This alternative education also prepares them to be law abiding and
self-sufficient.
Mr. Yoder and the other parents were convicted in Wisconsin Circuit Court for their children’s
truancy (failure to attend compulsory schooling). They were required to pay a five-dollar fine, which
they refused to do as a matter of conscience. The Yoders and the other families appealed to the
Wisconsin Supreme Court on the grounds that their First Amendment free exercise rights were
violated. The state Supreme Court agreed and reversed the Circuit Court’s decision, ruling in favor

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 Wisconsin v. Yoder (1972)

of the Yoders. The state of Wisconsin sought review by the U.S. Supreme Court, which agreed to
hear the case.

Issue
Under what conditions does the state’s interest in promoting compulsory education override
parents’ First Amendment right to free exercise of religion?

Constitutional Amendments and Supreme Court Precedents

− First Amendment to the U.S. Constitution

“Congress shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof…”

− 14th Amendment to the U.S. Constitution

“...nor shall any State deprive any person of life, liberty, or property, without due process of
law...”

− Pierce v. Society of Sisters (1925)

Oregon had banned private school attendance in an effort to eliminate religious schools, and
it required parents or guardians to send children to local public schools between the ages of
eight and 16. The Society of Sisters, an order of nuns that cared for orphans and provided
Catholic schooling, sued the state, arguing that the requirement to attend public schools
violated the First Amendment’s protection for free exercise of religion. The Supreme Court
ruled that the Oregon law was unconstitutional under the Due Process Clause of the 14th
Amendment, implicitly incorporating the right to religious liberty. The Court explained that,
while the state has an important interest in providing public education, even that important
objective must be balanced against the interests of parents in the free exercise of religion. As
long as privately provided education would adequately prepare students, the state could not
prevent religious parents or communities from educating students in private schools.

− Prince v. Massachusetts (1944)

Sarah Prince challenged her conviction under Massachusetts child labor laws that prevented
boys under the age of 12 and girls under the age of 18 from selling any publications or other
forms of merchandise in public places. Ms. Prince was a member of the Jehovah’s Witnesses
(a religious sect) and the aunt and guardian for nine-year-old Betty Simmons. While under
Ms. Prince’s care, and with her knowledge, young Betty distributed religious literature on the
street and accepted donations. The Supreme Court upheld the state law prohibiting the
distribution of religious literature in a public place by a minor. The Court reasoned that a
state’s generally applicable regulation to protect child welfare (a prohibition against child

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labor) could override the parents’ free exercise of religion if there was a demonstrated threat
to the child’s physical or mental health or to the public order.

Arguments for Wisconsin (petitioner)

− Compulsory education up to the age of 16 is a “compelling governmental interest” that
benefits the larger society. That compelling interest should override the Amish community’s
claims that school attendance negatively affects the practice of their religion.
− The final years of high school prepare students for employment and civic participation. The
government has a compelling interest in requiring all students to complete secondary
education in order to participate effectively in the American political system and become
self-sufficient.
− At some point in the future, students may choose to leave the Amish community. In order
to avoid being a burden to society, students need to have a full and proper education to be
successful outside of the religious community.
− Mandatory school attendance laws apply neutrally and equally to everyone regardless of their
religion and do not discriminate in favor of or against any particular religion. Therefore, they
are beyond protection of the First Amendment.

Arguments for Yoder (respondent)

− The Amish community’s belief about the danger of formal education to their religion are
sincere. They should not be forced to violate their own religious beliefs.
− The Amish community provides an alternative vocational education that prepares children
for their adult roles within their community, so they do not need to send their children to
school past eighth grade. That alternative education prepares the Amish to become self-
sufficient.
− Additional years of compulsory schooling would not better prepare Amish students for their
lives of agrarian and manual labor, even if they choose to leave Amish life.
− The Amish community is law-abiding and has been for centuries. That is evidence that the
requirements of citizenship had been met by the Amish without the required additional years
of secondary education.
− Leaving school after eighth grade does not create physical or mental harm to the students
and does not disrupt the school or the community.

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 Wisconsin v. Yoder (1972)

Decision
The Court decided the case unanimously, 7-0, in favor of Yoder. Chief Justice Burger delivered the
opinion of the court. Justices Powell and Rehnquist did not take part in the case. Justice Douglas
delivered a partial dissent.

Majority
The Supreme Court held that the Free Exercise Clause of the First Amendment, as incorporated by
the 14th Amendment, prevented the state of Wisconsin from compelling the respondents to send
their children to formal secondary school beyond the age of 14.
The Court ruled that the families’ religious beliefs and practices outweighed the state’s interests in
making the children attend school beyond the eighth grade. The Court first satisfied itself that,
according to expert testimony in the record, the requirement to send their children to school beyond
the eighth grade would actually interfere with well-established and deeply held religious convictions:
“In sum, the unchallenged testimony of acknowledged experts in education and religious
history, almost 300 years of consistent practice, and strong evidence of a sustained faith
pervading and regulating respondents' entire mode of life support the claim that
enforcement of the State's requirement of compulsory formal education after the eighth
grade would gravely endanger, if not destroy, the free exercise of respondents' religious
beliefs.”
The Court then rejected the state’s arguments for overriding the parents’ religious beliefs. The Court
commented that an additional one or two years of high school (until the required age of 16) would
not produce enough educational benefits for the Amish to constitute a “compelling government
interest.” The Court cited the endurance of their law-abiding community for centuries as evidence
that the Amish meet the responsibilities of citizenship without the required additional years of
secondary education.
The justices also noted that nothing in their decision undermined general state compulsory school
attendance laws for non-Amish people and emphasized that states may still set reasonable standards
for church-sponsored schools, including for Amish agricultural vocational education, as long as
those rules do not impair the free exercise of religion.

Dissent, in part
Justice Douglas joined the majority decision as applied to Mr. Yoder but disagreed with the
majority’s ruling regarding some of the other families. Because the majority opinion focused only on
the free exercise claims of the parents (the ones who were charged with a crime) and not the
children, Justice Douglas would have sent the cases of the other children back to lower courts to
learn whether or not the children wanted to attend school past eighth grade. Mr. Yoder’s daughter
had testified in lower court that she wished to be educated at home.

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 Wisconsin v. Yoder (1972)

Impact
Wisconsin v. Yoder demonstrates that the government’s interest in educating children is not absolute,
and that it cannot overcome the First Amendment right to free exercise of religion in this situation.
However, the Court also emphasized that the religion in this case was very unique because of how
inseparable it is from the Amish way of life. The case is often said to be the basis for allowing
students to be homeschooled instead of attending public or private schools.
The majority opinion in Wisconsin v. Yoder also provided some guidance for interpreting what kinds
of religious beliefs are subject to the Free Exercise Clause. Importantly, the Court asked whether the
religious beliefs involved in the case are “sincerely held.” In answering this question in Wisconsin v.
Yoder, the Court pointed out the long history of Amish religious practices.
The Court expanded on this opinion in its 1990 decision in Employment Division v. Smith. This case
challenged a law criminalizing the use of peyote, a cactus used in some Native American rituals that
produces psychedelic effects. In his majority opinion, Justice Scalia explained that the Court struck
down the law in Yoder because it involved “hybrid” claims. In other words, the respondent’s
argument combined a Free Exercise argument with another claim (the right of parents to make
choices about their child’s education). This was not the case in Employment Division v. Smith, and the
law was allowed to stand.

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