Liberty and Union

Volume Two

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Chapter 14


Progressivism was not a monolithic political movement, but rather an attitude marked by a belief in reform, progress, and the involvement of government in the everyday life of the nation. Progressives rejected the laissez-faire principles that had guided public policy in the late nineteenth century, embracing instead the idea of government as an active partner in shaping the American future. The Progressives sought to reform and modernize government at both local and national levels. At the local level, Progressives sought to end corrupt politics, provide relief to the poor, establish public health programs, and clean up the teeming slums of America’s industrial cities. At the national level, they supported the passage of regulatory and protective legislation, as well as the adoption of constitutional amendments advancing the goals of their reform agenda.

Online Exhibit: Progressive Era to New Era, 1900–1929

Interactive Timeline: Progressive Era to New Era, 1900–1929

Speech by Theodore Roosevelt (April 15, 1906)

Herbert Croly, The Promise of American Life (1909)

Upton Sinclair, The Jungle (1906)

Online Exhibit: Photography of Jacob Riis

Essay: “The Woman Who Took on the Tycoon”

Meat Inspection Act (1906)

White Slavery Act /Mann Act (1910)

Background on the Mann Act

Phosphorous Match Act (1912)

Harrison Narcotics Act (1914)

Child Labor Act (1916)

Changes in Court Personnel

When Justice Steven J. Field resigned from the Court in 1897, President McKinley appointed Joseph McKenna, who generally supported Progressive reforms from the bench. Theodore Roosevelt, who succeeded McKinley as president, appointed Oliver Wendell Holmes, Jr., William R. Day, and William H. Moody in the hope of protecting his trust-busting agenda against judicial challenges. Similarly, President Taft’s appointments of Charles Evans Hughes, Willis Van Devanter, and Mahlon Pitney strengthened the hand of progressivism on the Court, as did President Wilson’s appointments of James C. McReynolds, Louis D. Brandeis, and John H. Clarke. The new century thus began with a more reform-minded court than before, almost evenly divided between conservatives and liberals. Some of these justices ended their careers on the bench as extreme conservatives, but they were not viewed as such at the time of their appointment.

Joseph McKenna

Oliver Wendell Holmes, Jr.

William H. Moody

Horace H. Lurton

Charles Evans Hughes

Willis Van Devanter

Joseph R. Lamar

Mahlon Pitney

James C. McReynolds

Louis D. Brandeis

John H. Clarke

Federal Police Powers Upheld

The Supreme Court set the stage for the sweeping exercise of federal regulatory power in Champion v. Ames and McCray v. United States. In Champion, the Court held that so long as Congress has the power to act under the Commerce Clause, its purpose in legislating is not subject to judicial review. Similarly, in McCray, the Court held that Congress’s exercise of the tax power is not subject to any purpose tests. In effect, the tax and commerce powers can be used by Congress for regulatory purposes not primarily involving taxation or commerce. Together, these holdings opened up vast vistas for the exercise of federal power.

Champion v. Ames (1903)

McCray v. United States (1904)

Hipolite Egg Company v. United States (1911)

Hoke v. United States (1913)

Pittsburgh Melting Company v. Totten (1918)

Adair v. United States (1908)

Coppage v. Kansas (1915)

Hammer v. Dagenhart (1918)

Restraints on the States

While the Court upheld expansive federal police powers, it limited the exercise of state police powers. In Lochner v. New York (1906), a narrowly divided court voted 5-4 to strike down a New York law limiting employment in commercial bakeries to a 10-hour workday. The majority was not satisfied that there was a sufficient health risk involved in such employment to justify a limitation on the hours of labor. The case was something of an anomaly given the Court’s accommodative approach to federal regulation during the Progressive Era.

Lochner v. New York (1906)

Trust-Busting and the Court

President Theodore Roosevelt undertook more prosecutions under the Sherman Anti-Trust Act than had been brought by any of his predecessors. The Court accommodated his antitrust campaign by abandoning the narrow interpretation it had given to the statute in United States v. E.C. Knight (1895). In Northern Securities Company v. United States (1904), the Court held that restraints on competition also constitute restraints on trade under the act.

Sherman Anti-Trust Act (1890)

Theodore Roosevelt’s First Annual Message to Congress, December 3, 1901

Northern Securities Company v. United States (1904)

Stream of Commerce Theory

In Swift and Company v. United States (1905), the Court upheld an injunction against price-fixing agreements between meat-packing houses in Chicago on the ground that the agreements affected the distribution of livestock and meat across state lines. The holding abandoned the narrow interpretation of commerce adopted by the Court in the E.C. Knight case, bringing virtually every aspect of productive enterprise within Congress’s regulatory powers under the Commerce Clause.

Swift and Company v. United States (1905)

The Rule of Reason Doctrine

A major obstacle to trust-busting in the early twentieth century was the common-law rule of reason doctrine that only unreasonable combinations are unlawful. In Standard Oil of New Jersey v. United States (1911), the Court held, as a matter of statutory construction, that the Sherman Anti-Trust Act prohibited only unreasonable combinations in restraint of trade. This interpretation of the law kept some of the most powerful corporations in America beyond the reach of the trust-busters.

United States v. Trans-Missouri Freight Association (1897)

Standard Oil of New Jersey v. United States (1911)

United States v. American Tobacco Company (1911)

United States v. Winslow (1913)

United States v. United States Steel Corporation(1920)

Labor Unions and the Sherman Act

In the Danbury Hatters Case (1908), the Supreme Court unanimously held that combinations of workers were to be treated no differently from business combinations. The Sherman Act thus became a powerful weapon for use against organized labor.

Danbury Hatters Case (Loewe v. Lawlor) (1908)

Reviving and Strengthening the ICC

Illinois Central Railroad Co. v. ICC (1907) and ICC v. Illinois (1910) began to restore some of the power that had been stripped from the ICC by the Fuller Court. In these cases, the Court held that it would not review factual findings or policies underlying the decisions of the Interstate Commerce Commission. Rather, the Court would review only whether the Commission had the authority to issue a decision in the first place. These rulings paved the way for grants of power by Congress to other regulatory agencies.

Illinois Central Railroad Company v. Interstate Commerce Commission (1907)

Interstate Commerce Commission v. Illinois (1910)

United States v. Atchison, Topeka, and Santa Fe Railroad Company (1914)

Minnesota Rate Cases (1913)

Shreveport Case (1914)

The New Freedom

Woodrow Wilson was elected president by promising Americans a “New Freedom.” He pledged to restore to individuals the freedom they had lost at the hands of unchecked corporations and exploitative employers. As president, Wilson undertook a number of initiatives to lower tariffs and increase the amount of regulation to which businesses were subjected. His administration passed laws governing worker’s compensation, child labor, and farm loans. These measures mark the final phase of progressivism before the enthusiasm for reform became a casualty of the nation’s entry into World War I.

Federal Trade Commission Act (1914)

Clayton Antitrust Act (1914)

Workmen’s Compensation Act (1916)

Keating-Owens Act (1916)

Farm Loan Act (1916)

Judiciary Act of 1914

The Judiciary Act of 1914 resolved a problem caused by Section 25 of the Federal Judiciary Act of 1789, under which the Supreme Court could only take appeals from state courts when the latter failed to uphold a right claimed under the Constitution, law, or treaty of the United States. Because no review was possible when the right claimed was upheld, the state courts in some cases had the last word in matters of federal law. The upshot was that the interpretation of federal law sometimes differed from state to state. The Judiciary Act of 1914 corrected this undesirable double standard by authorizing appeals from the state courts to the Supreme Court in all cases involving federal issues.

Judiciary Act of 1914

Sixteenth Amendment

The Sixteenth Amendment confers upon Congress the power to levy an income tax. The introduction of a federal income tax ensured that the wealthy shared the burden of paying for government. It also ensured that the federal government had the tax revenues with which to expand its regulatory functions.


Sixteenth Amendment (Annotated)

Ratification of the Sixteenth Amendment

Seventeenth Amendment

The ratification of the Seventeenth Amendment was one of the Progressives’ most significant victories. By providing for the direct election of senators, the amendment made government more truly representative of the people and therefore, Progressives believed, more responsive to the nation’s needs.

Seventeenth Amendment (Annotated)

Ratification of the Seventeenth Amendment


The Prohibition movement long predated progressivism, but the emphasis of the latter on social reform was a key factor in its ultimate success with the ratification of the Eighteenth Amendment. World War I also helped by giving the conservation of grain used to produce alcoholic beverages the gloss of patriotism as a war measure. Challenges to the amendment were rejected by the Supreme Court in Rhode Island v. Palmer (1920) and Dillon v. Gloss (1921).

Eighteenth Amendment (Annotated)

Temperance and Prohibition

Clark Distilling Company v. Western Maryland Railway Company (1917)

The Volstead Act (192)

Rhode Island v. Palmer (1920)

Dillon v. Gloss (1921)

Women’s Rights

Like Prohibition, the campaign for women’s suffrage was energized by progressives’ zeal for reform. And like the Prohibition Amendment, the campaign for women’s suffrage drew strength by the conditions of World War I, specifically the entry of women into the labor force. Women’s contributions to the war effort begged the question why they should not also have the right to vote. The answer came in 1920 with the ratification of the Nineteenth Amendment.

Susan B. Anthony, “Is It a Crime for a Citizen of the United States to Vote?”(1873)

Ratification of the Nineteenth Amendment

Nineteenth Amendment (Annotated)

Problems of Empire

By the early twentieth century, the United States had acquired diverse and far-flung territories throughout the world. In 1867, the United States purchased Alaska from Russia, and in the 1890s acquired part of Samoa and the Hawaiian Islands. The nation also acquired Puerto Rico, Guam, and the Philippines in the wake of the Spanish-American War. The challenges of governing these distant territories and their inhabitants raised questions about their constitutional status. The Supreme Court dealt with these issues in the Insular Cases, defining the constitutional status of the nation’s overseas empire.

Philippine-American War

Emilio Aguinaldo

Proclamation of Benevolent Assimilation (December 21, 1898)

De Lima v. Bidwell (1901)

Downes v. Bidwell (1901)

Hawaii v. Mankichi (1903)

Dorr v. United States (1904)

Rassmussen v. United States (1905)

Balzac v. Porto Rico (1922)

Chapter 15

World War I

When war erupted in Europe in 1914, the United States took an official position of neutrality. But the brutality of the German invasion of neutral Belgium convinced many Americans to support the Allied cause. The U.S. government provided loans to Allied nations and sold Allied nations American goods to help the cause. These measures were inconsistent with official neutrality, and provoked confrontation with Germany.

Interactive Timeline of WWI

The Great War and the Shaping of the Twentieth Century

World War I Audio Files

The Sinking of the Lusitania

The invention of submarines introduced new horrors to warfare. Submarines could travel unseen and strike civilian vessels indiscriminately, inflicting mass casualties in violation of existing laws of war. The sinking of the British passenger liner Lusitania sent a wave of revulsion through the United States. More than a thousand were killed, many of them Americans. While American sympathies were with the Allies, the nation was not yet willing to enter the war. In 1916 President Wilson secured a promise from Germany that it would abandon unrestricted submarine warfare. This agreement won him the election that year on the slogan, “He kept us out of war.”

Lost Liners: The Lusitania

Admiral von Holtzendorff on the need for unrestricted submarine warfare (December 22, 1916)

Mobilizing for Total War

In January, the German government informed President Wilson that it was returning to its policy of unrestricted submarine warfare. The sinking of several American ships in the following months brought America to war. On April 2, 1917, he called upon Congress to declare war on Germany. On April 6, Congress obliged.

Wilson’s War Message to Congress (April 2, 1917)'s_War_Message_to_Congress

“Joint Resolution Declaring that a state of war exists between the Imperial German Government and the Government and the people of the United States and making provision to prosecute the same.” (at p. 83)

Mobilizing for Total War

World War I required that the United States coordinate all its resources in the war effort. Congress enacted the Selective Service Act in 1917 to ensure that there were enough men to fight. It also began conscripting the nation’s economic resources into the war effort through such administrative measures as the War Industries Board, the Fuel Administration, the War Labor Conference Board, and the Food Administration.

Selective Service Act of 1917

“Food Will Win the War: On the Home Front in World War I”

Wartime Thought Control

In order to promote support for the war, the Wilson administration launched a coordinated propaganda campaign through the Committee on Public Information. Under the leadership of George Creel, the committee inundated the nation with images, pamphlets, speeches, cartoons, and movies.

Executive Order 2594: Creating Committee on Public Information (April 13, 1917)

Online Exhibition: “Poster Art of World War I”

“Four Minute Men: Volunteer Speeches during World War I”

How We Advertised America: The First Telling of the Amazing Story of the Committee on Public Information that Carried the Gospel of Americanism to Every Corner of the Globe, by George Creel (1920)

Suppressing Dissent

The Espionage and Sedition Acts provided the federal government with a legal basis for the suppression of dissent. The laws were so sweeping that virtually any speech could be construed as antiwar speech. Books about Germany were excluded from the mail, financial advisors could be investigated for steering clients away from war bonds, and vigilance committees reported private conversations to the authorities.

Espionage Act (1917)

Sedition Act (1918)

War Powers Cases

The Supreme Court was remarkably quiescent in the Wilson administration’s wartime measures. It upheld the draft as constitutional, along with price controls, rent controls, and railroad seizures. All were construed as valid exercises of the war powers.

Selective Draft Law Cases (Arver v. United States)

Hamilton v. Kentucky Distilleries Company (1919)

Northern Pacific Railway Company v. North Dakota (1919)

Ruppert v. Caffey (1920)

United States v. L. Cohen Grocery Company (1921)

Block v. Hirsh (1921)

First Amendment Rights

The fate of First Amendment rights is one of the most troubling chapters in the history of World War I. In Schenck v. United States, Justice Holmes formulated the “clear and present danger” test of speech: “The question in every case is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” Far more insidious was the “bad tendency” test adopted by the Court in Abrams v. United States. Under it, speech that simply contained a “bad tendency” warranted a conviction.

Schenck v. United States

Debs v. United States (1919)

Abrams v. United States (1919)

Pierce v. United States (1920)

Rejection of the League of Nations

The war ended on a note of frustration for the Wilson administration, which failed to secure the ratification of the Treaty of Versailles. The treaty was viewed in the United States as punitive and vindictive. But rather than seeking out compromise on points of the treaty with domestic opponents, Wilson took a hardline stance that cost him his most cherished goal: U.S. membership in the League of Nations, an organization constituted under the treaty for the purpose of securing peace.

League of Nations

The Covenant of the League of Nations

League of Nations Photo Archive

“Topics in Chronicling America: League of Nations”

Chapter 16

The Return to Normalcy

In the wake of World War I, the optimism and idealism of the Progressive Era gave way to a sense of complacency. Warren Harding was elected president by promising the nation a return to normalcy. “America’s present need is not heroics, but healing,” he declared. “[N]ot nostrums, but normalcy; not revolution, but restoration; not agitation, but adjustment; not surgery, but serenity; not the dramatic, but the dispassionate; not experiment, but equipoise; not submergence in internationality, but sustainment in triumphant nationality.” His administration was marked by corruption, cronyism, and scandal. His successor, Calvin Coolidge, restored to the office of the President the integrity and dignity it had lost under the Harding administration.

Warren G. Harding

The “Return to Normalcy” Speech (May 14, 1920)

Graft and Oil: How Teapot Dome Became the Greatest Political Scandal of Its Time, by Robert W. Cherny

Calvin Coolidge

Repeal of Prohibition

The “Noble Experiment” of Prohibition proved an abject failure. Rather than eliminating the consumption of alcohol, the ban turned drinking into a fashionable form of social protest. In addition, Prohibition proved a boon to organized crime, which used the proceeds of smuggling to bribe public officials and finance other illegal enterprises. Prohibition was finally repealed in 1933 with the passage of the Twenty-First Amendment.

Repeal of the Eighteenth Amendment (Twenty-First Amendment)

Article: “Prohibition Repeal Is Ratified at 5:32 P.M.; Roosevelt Asks Nation to Bar the Saloon; New York Celebrates with Quiet Restraint” (New York Times; December 5, 1933)

Twenty-First Amendment (Annotated)

New Justices Appointed to the Court

When Chief Justice White died, former president William Howard Taft was appointed to succeed him. His appointment marked a turning point for the court as it moved away from the liberalism of the Progressive Era to a more conservative stance.

William Howard Taft

George Sutherland

Pierce Butler

Edward T. Sanford

Harlan F. Stone

Judges’ Bill of 1925

The Judges’ Bill of 1925 gave the Supreme Court almost complete control over its appellate functions. All appeals thereafter had to be brought through a petition for a writ of certiorari. The Court could grant or deny the writ without ruling on the merits of the case. In order to grant a writ of certiorari, four of the nine justices had to vote in favor of it.

Judges’ Bill of 1925

The Taft Court

As chief justice, Taft favored strict construction of the Constitution. He believed that the Court’s proper role was not to rationalize social experiments, but to keep government from overstepping the bounds set by the framers. In Hammer v. Dagenhart, the Court held that the Child Labor Act of 1916 was an unconstitutional encroachment upon powers reserved to the states under the Tenth Amendment. In Bailey v. Drexel Furniture Company the Court held that the federal government could not do by taxation what it could not do through express prohibition. Taxes could not be used as a penalty for regulatory purposes.

Hammer v. Dagenhart (1918)

Bailey v. Drexel Furniture Company (1922)

Organized Labor and the Court

The Clayton Act, which excluded organized labor from the provisions of federal antitrust statutes, was hailed as a major victory for labor unions. The Taft Court interpreted the act narrowly, upholding the labor injunction in Duplex Printing Company v. Deering and Truax v. Corrigan. The Court was also evenhanded in dealing with unions, ruling in the United Mine Workers and United Leather Workers’ Union cases that the employers in question had not proven the unions civilly liable under the Sherman Act.

The Clayton Act (1918)

Duplex Printing Company v. Deering (1921)

Truax v. Corrigan (1921)

Union Mine Workers v. Coronado Company (1922)

United Leather Workers’ Union v. Herkert & Meisel (1924)


The Taft Court and Public Regulation

The Taft Court invalidated a number of federal and state measures establishing minimum wages and labor standards. The Court ignored or overruled precedents of the Progressive Era in favor of the absolute protection of property rights. But where personal liberty was in question, the Court was more tolerant of state regulation. In Buck v. Bell the Court upheld a Virginia statute providing for compulsory sterilization of inmates at state-supported institutions.

Adkins v. Children’s Hospital (1923)

Muller v. Oregon (1908)

Bunting v. Oregon (1917)

Lochner v. New York (1905)

Wolff Packing Company v. Court of Industrial Relations (1923)

Schmidinger v. Chicago (1913)

Tyson v. Banton (1927)

Ribnik v. McBride (1928)

Williams v. Standard Oil Company (1929)

Buck v. Bell (1927)

Eugenics. “Three Generations, No Imbeciles: Virginia, Eugenics & Buck v. Bell”

Federal Commerce Power

The commerce clause jurisprudence of the Taft court is one of its most enduring legacies. In Stafford v. Wallace, the Court ruled that the stream of commerce doctrine propounded in Swift and Company v. United States had become “a fixed rule of this court.” Building upon that rule, the Taft Court upheld several federal regulations as legitimate exercises of the commerce power.

Stafford v. Wallace (1922)

Railroad Commission of Wisconsin v. C.B. & Q. Railway Company (1922)

Brooks v. United States (1925)

The Treaty Power

In Missouri v. Holland, the Court held that the federal government’s treaty powers are not limited by the Tenth Amendment. In theory, any power reserved to the states under the Tenth Amendment might be taken over by the federal government pursuant to a treaty. The one limitation on the power is that the federal government may not use the treaty power to contravene any of the express prohibitions of the Constitution.

Missouri v. Holland (1920)

Federal Grants-in-Aid

In Massachusetts v. Mellon, the Court upheld the constitutionality of federal grants-in-aid, through which Congress appropriates money to states for purposes beyond the jurisdiction of the federal government. The holding made possible the expansion of federal power through the funding of state programs.

Massachusetts v. Mellon (1923)

The Executive Power of Removal

In Myers v. United States the Court ruled once and for all on the constitutionality of the Tenure of Office Act, holding that it was an unconstitutional restraint on the president’s removal power.

Myers v. United States (1926)

Liberty and the Court

The Taft Court built upon the Allgeyer precedent in finding that the Due Process Clause of the Fourteenth Amendment protects individual liberty from certain kinds of government encroachment. While Allgeyer only extended that protection from encroachments upon freedom of contract, the Taft Court extended it to other types of interests, including life and liberty.

Allgeyer v. Louisiana (1897)

Moore v. Dempsey (1923)

Meyer v. Nebraska (1923)

Whitney v. California (1927)

Fiske v. Kansas (1927)

Hoover’s Appointments

The Great Depression prompted a political reaction that put President Hoover and congressional Republicans on the defensive. Hoover’s nominations to the Court were hotly contested. In the end, though, Charles Evans Hughes was promoted to the chief justiceship and Owen Roberts and Benjamin Cardozo joined the Court as associate justices.

Owen J. Roberts

Benjamin N. Cardozo

Extending the Guarantees of the Bill of Rights

The Hughes Court made great progress in incorporating the key guarantees of the Bill of Rights into the Due Process Clause of the Fourteenth Amendment. The process began with bold rulings on First Amendment and Sixth Amendment rights. The Hughes Court would accomplish on a case-by-case basis what the Chase Court had declined to do outright in the Slaughter-House Cases.

Stromberg v. California (1931)

Near v. Minnesota (1931)

Powell v. Alabama (1932)

Chapter 17

The Great Depression

Although the causes of the Great Depression are subject to much academic debate, there is no question that the Depression was one of the most serious domestic crises in U.S. history. Every sector of the economy was impacted, from agriculture to manufacture. The contraction of the economy left one-quarter of the American workforce unemployed, while the standard of living dropped for those who remained employed. Shantytowns—dubbed Hoovervilles for the president upon whom many blamed the Depression—sprang up across the nation, populated by homeless families no longer able to pay for shelter.

Timeline of the Great Depression

Newspaper Excerpts: The Stock Market Crash of 1929

Online Library of Primary Sources: Great Depression and World War II, 1929–1945

Online Exhibit: Photographing the People of the Depression

Article: “What Can We Learn from the Great Depression?”

Twentieth Amendment

Until the ratification of the Twentieth Amendment in 1933, the outgoing president spent four months in office before the inauguration of the new chief executive. The Lame Duck Amendment, as it was called, provided that the new Congress would convene on January 3 and that the president and vice president would take office on January 20.

Senate Judiciary Report on the Twentieth Amendment

The Constitution and the Inauguration of the President

Twentieth Amendment (Annotated)

Roosevelt Takes Charge

The Republican party was repudiated at the polls in the 1932 presidential election. Franklin Delano Roosevelt won a landslide victory by promising the nation a New Deal that would restore the American economy to prosperity. In his inaugural address, Roosevelt committed his administration to programs of unprecedented governmental intervention to pull the nation from the grips of the Depression. “This nation asks for action,” he said, “and action now. Our greatest primary task is to put people to work. This is no unsolvable problem if we face it wisely and courageously. It can be accomplished in part by direct recruiting by the Government itself, treating the task as we would treat the emergency of a war, but at the same time, through this employment, accomplishing greatly needed projects to stimulate and reorganize the use of our natural resources.”

Franklin Delano Roosevelt

1933 News Reel: Roosevelt’s Inauguration

First Inaugural Address of Franklin Delano Roosevelt (March 4, 1933)

Saving the Banks

A banking crisis swept the nation as businesses and homeowners defaulted on their debts and Americans, fearing bank closures, withdrew their deposits. By March of 1933, nearly every state had passed measures suspending or limiting ordinary banking activities. One of Roosevelt’s first actions as president was to issue a series of executive orders, subsequently enacted into law by Congress, to stabilize the banking system.

Fireside Chat on the Banking Crisis (March 12, 1933)—Full Text

Fireside Chat 1: “On the Banking Crisis” (March 12, 1933)—Audio Excerpt

Emergency Banking Act of 1933

Executive Order 6102: Requiring Gold Coin, Gold Bullion, and Gold Certificates to Be Delivered to the Government (April 5, 1933)

Recovery Measures

In the first three months of Roosevelt’s presidency, Congress enacted legislation providing the bare minimum of relief needed to prevent widespread social upheaval. The traditional assumptions of American life seemed to have failed, and Roosevelt sought to restore confidence to the nation. The Agricultural Adjustment Act and the National Industrial Recovery Act raised income levels in agriculture and industry. The Tennessee Valley Authority promoted economic development in some of the most depressed areas of the country, and the Civilian Conservation Corps and Public Works Administration created jobs conserving and developing the public infrastructure.

Online Exhibit: America’s Great Depression and Roosevelt’s New Deal

Agricultural Adjustment Act (1933)

National Industrial Recovery Act (1933)

Tennessee Valley Authority Act (1933)

Tennessee Valley Authority

Essay: The Federal Emergency Relief Administration (FERA)

The New Deal Network (includes library of primary sources organized by topic)

The Second New Deal

In 1935 Roosevelt implemented a second wave of New Deal programs focusing on social and economic reform. The Works Progress Administration put millions of workers on the government payroll with projects ranging from public works to cultural programs. The National Youth Administration employed people between the ages of 16 and 25. The National Labor Relations Act created a board to deal with labor grievances and settle strikes. Measures such as wage-and-hour legislation and the Social Security Act of 1935 provided direct relief to the aged and unemployed.

Slideshow: FDR, the WPA, and the New Deal Arts Programs

Online Collection: Posters from the WPA

“America’s Unfinished Business,” Address of Florence S. Kerr, Assistant Administrator of the Works Progress Administration (May 6, 1939)

National Youth Administration

National Labor Relations Act (1935)

FDR and Housing Legislation

State Recovery Measures

In Home Building Association v. Blaisdell (1934) the Supreme Court narrowly upheld state legislation protecting debtors from foreclosure as a valid exercise of state police powers. The dissenting justices viewed such laws as clear violations of the Contract Clause of the Constitution.

Home Building Association v. Blaisdell (1934)

Public Interest Doctrine Abandoned

Starting with Nebbia v. New York (1934), the Supreme Court abandoned the public interest doctrine limiting public regulation, thus paving the way for state regulation of virtually any business so long as the measures reasonably promoted the general welfare .

Nebbia v. New York (1934)

Gold Clause Cases

Some of the New Deal emergency measures involved monetary policy, specifically, the cancellation of contract clauses calling for the payment of debts in gold. In what came to be known as the Gold Clause Cases, the Supreme Court narrowly upheld the cancellation of such provisions as a valid exercise of Congress’s power over the monetary system. The cases represented a major victory for New Deal’s recovery program.

Norman v. Baltimore and Ohio Railroad Company (1935)

Nortz v. United States (1935)

Perry v. United States (1935)

New Deal Setbacks

While the Supreme Court upheld the New Deal on monetary policy, its regulatory programs did not fare as well. Legislation creating retirement benefits for interstate railroad employees, measures protecting farmers from foreclosure, and laws regulating wages and hours were overturned as violations of the Due Process Clause of the Fifth Amendment and the Commerce Clause. In addition, the authority of the president to remove members of federal regulatory commissions was held to violate the constitutional separation of powers.

Panama Refining Company v. Ryan (1935)

Retirement Board v. Alton Railroad Company (1935)

Louisville Joint Stock Land Bank Company v. Radford (1935)

Humphrey’s Executor v. United States (1935)

Myers v. United States (1926)

Schechter Poultry Corporation v. United States (1935)

Roosevelt and the Court

Roosevelt made no attempt to conceal his frustration with the Court. In a press conference of May 31, 1935, he likened the Schechter Poultry decision to the Dred Scott case in its historical import and accused the Court of being out of touch with the needs of the nation. When the Court struck down even more recovery measures the following year, many New Dealers urged the president to take action.

FDR Press Conference (May 31, 1935)

United States v. Butler (1936)

Carter v. Carter Coal Company (1936)

Ashton v. Cameron County Water District (1936)

Ashwander v. Tennessee Valley Authority (1936)

Morehead v. New York ex rel. Tipaldo (1936)

Roosevelt’s Court Plan

Democratic victory in the 1936 elections prompted Roosevelt to take action against judicial opposition to the New Deal program. In February of 1937 Roosevelt presented Congress with a plan for the reorganization of the federal judiciary. The proposal included appointing additional judges at every level of the judiciary to counter the influence of older judges thought to be out of touch with the needs of the nation. The proposal backfired badly and was rejected as an attack on the independence of the judiciary. Its defeat had far-reaching consequences in shoring up congressional opposition to other New Deal proposals.

Statement by Frank E. Gannett on Roosevelt’s Court Packing Plan (February 23, 1937)

President Roosevelt’s Fireside Chat on “Court-Packing” (March 9, 1937)

Article: “When Franklin Roosevelt Clashed with the Supreme Court—and Lost,” by William E. Leuchtenburg

West Coast Hotel Company v. Parrish (1937)

National Labor Relations Board v. Jones and Laughlin Steel Corporation (1937)

National Labor Relations Board v. Friedman-Harry Marks Clothing Company (1937)

Steward Machine Company v. Davis (1937)

Helvering v. Davis (1937)

Chapter 18

New Court Personnel

The justices President Roosevelt appointed to the Supreme Court would preside over an historic shift in judicial priorities. The New Deal Court gave government the widest leeway with respect to the public regulation of business and property. In order to pass constitutional muster, regulatory legislation only had to have a rational basis related to a legitimate legislative purpose. On the other hand, legislation affecting civil rights and liberties would be subject to a higher standard of judicial scrutiny.

Hugo L. Black

Stanley F. Reed

Felix Frankfurter

William O. Douglas

Frank Murphy

Robert H. Jackson

Harlan F. Stone

James F. Byrnes

The Commerce Power Unrestrained

The New Deal Court expanded the scope of Commerce Clause jurisprudence in a series of groundbreaking cases. The Court ruled in Darby (1941) that Congress’s exercise of the commerce power is not restrained by the Tenth Amendment. It stretched the Commerce Clause even further in Wickard (1942) and Edwards (1941) to regulate the conduct of private persons in activities only indirectly related to interstate commerce.

United States v. Darby Lumber Co. (1941)

Wickard v. Filburn (1942)

Article: Jim Chen, “The Story of Wickard v. Filburn: Agriculture, Aggregation, and Commerce”

Edwards v. California (1941)

The Dormant Commerce Clause Doctrine

The Court expanded on the dormant commerce clause doctrine developed over a century earlier by the Marshall Court. In H.P. Hood (1949) the Court invalidated a New York state licensing measure as a violation of the commerce power even where the federal government had not acted on the issue.

H.P. Hood & Sons v. Du Mond (1949)

No Federal Common Law

In Erie Railroad Company v. Tompkins (1938) the Supreme Court overturned the rule of Swift v. Tyson (1842). The Erie Court held that federal courts exercising diversity of citizenship jurisdiction must apply all the law of the states in which they sit, case law as well as statutes, thereby voiding nearly a century of federal common law.

Erie Railroad Company v. Tompkins (1938)

Selective Incorporation of the Bill of Rights

Although the New Deal Court virtually abandoned substantive due process with respect to property rights, it applied the doctrine with renewed vigor to protect civil and political liberties. Individual guarantees of the Bill of Rights were selectively enforced against states through the Due Process Clause of the Fourteenth Amendment. Among the first guarantees enforced at the state level were the right to counsel in capital cases and freedom of press.

Near v. Minnesota (1931)

Powell v. Alabama (1932)

Palko v. Connecticut (1937)

The Total Incorporation Theory

Justice Black rejected selective incorporation of some of the guarantees of the federal Bill of Rights and advocated instead extending all the federal guarantees to the states. Although his views nearly prevailed in Adamson v. California, the Court, for essentially pragmatic reasons, remained committed to selective incorporation.

Adamson v. California (1947)

Betts v. Brady (1942)

Expanding First Amendment Rights

The Court vigilantly protected the First Amendment rights of groups and individuals engaged in public protests and demonstrations, such as picketing and parades. While public authorities could regulate such activities in preserving public order, they could not do so arbitrarily. All regulations of public speech had to be reasonable and consistent with the underlying constitutional right to engage in the activity being regulated.

Thornhill v. Alabama (1940)

American Federation of Labor v. Swing (1941)

Carpenters and Joiners Union v. Ritter’s Café (1942)

Hague v. CIO (1939)

Cox v. New Hampshire (1941)

Political Dissent

The Court even extended First Amendment protection to speech calling for the overthrow of the government. So long as such speech did not pose a clear and present danger to public safely, it was protected by the Constitution.

DeJonge v. Oregon (1937)

Herndon v. Lowry (1937)

The Preferred Rights Doctrine

In Thomas v. Collins (1944) the Supreme Court went a step further, holding that laws restricting First Amendment rights do not enjoy the usual presumption of constitutionality. The reason, the majority explained, is that certain rights enjoy a preferred place in the constitutional scheme of things. This resulted in a double standard of constitutional interpretation, wherein some statutes would enjoy the presumption of constitutionality, while others would be treated as presumptively unconstitutional.

Thomas v. Collins (1944)

Terminiello v. City of Chicago (1949)

Article: Thomas A. Bolan, “Freedom of Speech and the Terminiello Case”

Religious Freedom

In Arver (1918) the Court held that the First Amendment does not in itself protect conscientious objectors from conscription for military service. While Congress may exempt them from service, they have no constitutional right to be exempt. Similarly, in Hamilton (1934) the Court held that the amendment does not exempt pacifists from military training as a condition for attending a state university.

Arver v. United States (1918)

Hamilton v. Regents of the University of California (1934)

Article: Michael J. Malbin, “Conscription, the Constitution, and the Framers: An Historical Analysis”

Jehovah’s Witnesses Cases

During the 1930s, the Jehovah’s Witnesses undertook an unprecedented proselytizing campaign in the United States, prompting a spate of litigation on religious rights. The Court upheld the right of the Witnesses to proselytize through public speeches and fliers so long as they did not breach the peace. However, the Court struggled with whether Witnesses could be exempted from mandatory flag salutes in public schools. In Gobitis (1940), the Court ruled that the First Amendment did not exempt students from participating in flag salutes on religious ground. However, the ruling was overturned in Barnette (1943) only three years later.

Lovell v. Griffin (1938)

Schneider v. Irvington (1939)

Cantwell v. Connecticut (1940)

Minersville School District v. Gobitis (1940)

West Virginia Board of Education v. Barnette (1943)

Article: Hon. Jeffrey S. Sutton, “Barnette, Frankfurter, and Judicial Review”

The Establishment Clause

The Establishment Clause of the First Amendment was at issue in cases involving public support for church-related schools, as well as cases involving religious instruction in public schools. The rulings were deeply divisive at the time and precipitated continuing controversy over church-state relations.

Everson v. Board of Education (1948)

Cochran v. Louisiana State Board of Education (1930)

Illinois ex rel. McCollum v. Board of Education (1948)

Zorach v. Clauson (1952)

Some Racial Justice

Established in 1909, the National Association for the Advancement of Colored People was instrumental in bringing civil rights cases to the Supreme Court. The NAACP’s earliest legal victories came through challenges to state suffrage laws designed to prevent African Americans from voting. Although “grandfather clauses” favoring the suffrage rights of whites were held unconstitutional by the Supreme Court, these rulings did not prevent other and more sophisticated attempts to rig the ballot.

NAACP: 100 Years of History

The Grandfather Clause in Louisiana

Guinn v. United States (1915)

Lane v. Wilson (1939)

The White Primary

One of the most effective methods used to disenfranchise blacks was the so-called “white primary.” Arguing that political parties were private associations and therefore not bound by the Fourteenth and Fifteenth Amendments, the Democratic party in the South barred blacks from voting in its primaries. In Smith v. Allwright (1944) the Court overturned an earlier ruling, holding instead that political parties are public entities with respect to elections and therefore subject to the same constitutional constraints as the states.

Newberry v. United States (1921)

Grovey v. Townsend (1935)

United States v. Classic (1941)

Smith v. Allwright (1944)

Article: Michael J. Klarman, “The White Primary Rulings: A Case Study in the Consequences of Supreme Court Decisionmaking”

Chapter 19

World War II

The experiences of World War I and the Great Depression left the United States firmly isolationist. Congress passed a number of measures during the 1930s to ensure that the nation remained neutral in the impending European conflict. But events made neutrality impossible for the United States. When the Japanese bombed Pearl Harbor in 1941, the nation was once again plunged into global war.

World War II Timeline

Interactive Web Site: World War II in Western Europe

FDR’s Quarantine Speech (October 5, 1937)

Overview of the Pearl Harbor Attack, December 7, 1941

FDR’s Pearl Harbor Speech (December 8, 1941)

Major Pacific Battles

Waging Total War

In United States v. Curtiss-Wright Export Corporation (1936), the Supreme Court held that the president has the constitutional authority to act as the voice of the nation in foreign affairs. The opinion supported expansive foreign relations powers for the president, and Roosevelt used these powers to the hilt as World War II unfolded. After Congress declared war on Japan and Germany in 1941, the Court upheld domestic wartime controls passed by Congress as constitutional exercises of the war powers.

United States v. Curtiss-Wright Export Corporation (1936)

Yakus v. United States (1944)

Bowles v. Willingham (1944)

Steuart & Brothers v. Bowles (1944)

Internment of Japanese-Americans

The compulsory relocation of more than 100,000 Japanese Americans remains one of the most troubling aspects of twentieth-century constitutional history. Under Executive Order No. 9066, Americans of Japanese descent were rounded up and relocated to detention camps without hearing or charge as a preventive security measure. A series of cases challenged various aspects of the internment program. The Court unanimously upheld a curfew order in Hirabayashi v. United States (1943) but was bitterly divided on the constitutionality of the relocation order and on the detention of Japanese Americans in Korematsu (1944) and Endo (1944) cases.

Executive Order No. 9066 (February 19, 1942)

Film: Japanese Internment (1943 U.S. government-produced film defending the World War II internment of Japanese American citizens)

Hirabayashi v. United States (1943)

Korematsu v. United States (1944)

Ex parte Endo (1944)

“Japanese Relocation and Internment during World War II” (links to primary sources)

“Sites of Shame” (interactive website on internment camps)

Military Trial of Civilians

Immediately after the Pearl Harbor attack, the Governor of Hawaii suspended the writ of habeas corpus and imposed martial law pursuant to the Hawaiian Organic Act of 1900. For the first time since the Civil War, U.S. civilians came under military jurisdiction. In Duncan v. Kahanamoku (1946) the Court avoided the underlying constitutional issue of whether Congress could subject civilians to military justice outside a war zone and decided the case on narrow statutory grounds instead.

Maj. Gen. Thomas H. Green, “Martial Law in Hawaii, December 7, 1941—April 4, 1943”

Duncan v. Kahanamoku (1946)

Jurisdiction over Enemy Military Personnel

In Ex parte Quirin (1942) the Supreme Court ruled on whether enemy saboteurs captured in the United States could be tried by military commissions when the civil courts were open and available. The Court unanimously held that the president as commander in chief has authority to establish military commissions for the purpose of trying enemy saboteurs. It further held that enemy military personnel are not protected by the United States Constitution.

Ex parte Quirin (1942)

German Espionage and Sabotage Against the United States in World War II: George John Dasch and the Nazi Saboteurs (FBI Handout)

Report for Congress: Louis Fisher, Military Tribunals: The Quirin Precedent (March 26, 2002)

War Crimes Trials

After the surrender of Japan, the United States established military tribunals for the trial of alleged war criminals. The controversial trial and conviction of General Tomoyuki Yamashita for war crimes in the Philippines raised serious questions about the procedures and rules of evidence employed by the commission that tried him. The Court upheld the jurisdiction of the military to try Yamashita but declined to rule on the fairness of his trial on the ground that the proceedings of military commissions are not subject to judicial review. The Court also held that the war powers of the government do not automatically cease with the cessation of hostilities.

In re Yamashita (1948)

Film Footage: Trial of General Tomoyuki Yamashita (1945)

War Powers in Peacetime

The Yamashita ruling on the persistence of the war powers after the end of hostilities was cited by the Court in Woods v. Miller (1948) to uphold a 1947 act of Congress continuing wartime rent controls.

Woods v. Miller (1948)

Wartime Treason

World War II required the Court to revisit the treason standard enunciated by Chief Justice Marshall in the 1807 treason trial of Aaron Burr. Marshall held that a defendant must be proved to have committed an overt act against the United States in order to be found guilty of the crime of treason. In Cramer v. United States (1945) and Haupt v. United States (1947) the Court held that the overt act alleged must be underpinned by treasonous intent.

Cramer v. United States (1945)

Haupt v. United States (1947)

Chapter 20

The Cold War

After the cessation of hostilities, the wartime alliance of the Allied Powers collapsed when the Russians proceeded to set up puppet communist regimes in Eastern Europe. Tensions between the West and the Soviet Union rapidly escalated into a global military and ideological confrontation. The Cold War, as it came to be known, was in some ways more threatening than the hot wars of the past because both sides were armed with nuclear weapons capable of mass destruction.

Timeline of the Cold War:

Interactive Website: Cold War

The Marshall Plan:

Online Exhibition: The Fiftieth Anniversary of the Marshall Plan

North Atlantic Treaty

War Powers of the President Limited

The first major eruption of Cold War hostilities occurred when communist North Korea attacked the American-backed government of South Korea. The United Nations Security Council issued a Resolution on June 25, 1950, calling upon member states to commit peacekeeping forces to the region. President Harry S. Truman committed United States forces to the mission and appointed General Douglas MacArthur to command all Allied Forces in Korea. There was no formal declaration of war by Congress, and the military operations that followed technically took the form of an international police action. When a steelworkers’ strike threatened to impair war production, Truman issued an executive order seizing the steel mills. The Supreme Court declared the order unconstitutional on the ground that the president could not invoke his war powers in time of peace absent congressional authorization.

The Korean War

The Korean War and Its Origins (links to primary sources)

United Nations Security Council Resolution (June 25, 1950)

Youngstown Sheet & Tube Company v. Sawyer (1952)

The Truman Loyalty Order

The Cold War put the United States on the defensive globally and gave rise to domestic suspicions that communist forces were working from within to subvert and ultimately overthrow the government. Rumors of espionage and the infiltration of the government by Soviet agents and sympathizers fueled the fear of hidden enemies on the home front. President Truman issued a Loyalty Order in 1947 for the investigation of employees of the executive branch. The campaign to root out subversives that followed for a time assumed the dimensions of a political witch hunt; loyal Americans were harassed and dismissed on the basis of rumors and anonymous accusations. High-profile cases involving espionage helped inflame anticommunist hysteria well into the 1950s.

“Loyalty Order” Executive Order 9835 (March 21, 1947)

Interactive Website: The Alger Hiss Story

Interactive Website: The Rosenberg Trial

The VENONA Files (declassified Soviet diplomatic correspondence intercepted by the U.S. government and unencrypted)

The McCarran Act

The McCarran Internal Security Act required all communist and communist-front organizations to register with the attorney general and submit their membership lists and financial records. While it did not prohibit membership in such organizations, the law prohibited the promotion of dictatorial forms of government and barred members from working for the federal government. It was followed by the Immigration and Nationality Act, which threatened denationalization and deportation of naturalized citizens who had been members of totalitarian organizations before coming to the United States. It was in this context that Senator Joseph R. McCarthy of Wisconsin rose to national prominence for his ruthless pursuit of alleged communists.

McCarran Internal Security Act (1950)

Behind the Scenes: The McCarran Internal Security Act (links to primary sources)

Alien Registration Act (Smith Act, 1940)

McCarran-Walter Immigration and Nationality Act (1952)

Presidential Succession

The Presidential Succession Act made the Speaker of the House and then the President Pro Tempore of the Senate next in line of succession to the president and vice president.

Presidential Succession Act (July 18, 1947)

Twenty-Second Amendment

The Twenty-Second Amendment prohibited anyone from serving as president for more than two terms. It also provided that anyone serving as president for more than two years of another person’s term should not be eligible for election as president more than once. Although Truman was exempted from the amendment as the sitting president, the measure was regarded by many as implicitly critical of his administration.

Twenty-Second Amendment (Annotated)

Truman’s Court Appointments

President Truman altered the balance of power on the Court with his appointments. Justices Reed, Jackson, and Frankfurter joined his conservative appointees on many issues, leaving Black and Douglas as the only consistently liberal justices on the Court.

Harold H. Burton

Fred M. Vinson

Tom C. Clark

Sherman Minton

Civil Liberties under Siege

The first major challenge to postwar anticommunist legislation came in American Communications Association v. Douds (1950). At issue was the constitutionality of a provision in the Taft-Hartley Act of 1947 requiring officers of labor unions to file affidavits disclaiming membership in the Communist Party and to disavow support for or belief in organizations advocating the violent overthrow of government. The Court upheld the affidavit requirement but declared the nonbelief oath unconstitutional for penalizing individuals for their political convictions.

American Communications Association v. Douds (1950)

Smith Act Prosecutions

The Smith Act imposed sweeping restrictions on First Amendment rights, making it a criminal offense “to knowingly or willingly advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence.” When the Truman administration used the act to indict eleven leading members of the American Communist Party, the defendants challenged the constitutionality of the measure under the First Amendment. The Court upheld the law by a 6–2 vote, but without agreement as to why it was constitutional.

Dennis v. United States (1951)

State Loyalty Programs

Taking their cue from the federal government, the states passed security measures involving loyalty oaths and noncommunist affidavits designed to exclude alleged subversives from government employment. Laws requiring individuals to disavow belief in the right to overthrow government by force were upheld by the Court as reasonable exercises of state police power.

Gerende v. Board of Supervisors (1951)

Garner v. Board of Public Works of Los Angeles (1952)

Adler v. Board of Education (1952)

Wieman v. Updegraff (1952)

The Federal Loyalty Program

In 1951, President Truman issued Executive Order 10241, which authorized the removal of government employees upon a finding of reasonable doubt as to their loyalty. A standard ordinarily used to protect the accused was now used to condemn them. The Supreme Court upheld the constitutionality of the order and of the loyalty boards employed to enforce it. The Court essentially took the position that no one has a constitutional right to a government job.

Executive Order 10241 (April 28, 1951)

Testimony of Paul Robeson before the House Committee on Un-American Activities (June 12, 1956)

Newsreel: Hollywood “Red” Probe, HUAC Hearings Begin 1947/10/20

Joint Anti-Fascist Refugee Committee v. McGrath (1951)

Racial Progress in the Courts

While civil liberties suffered significant setbacks during the Cold War, civil rights made some historic strides forward. The NAACP scored a number of signal victories in the Supreme Court. Racially restrictive covenants on property were held unenforceable under the Equal Protection Clause of the Fourteenth Amendment, and racial segregation in interstate transportation was held to interfere with the uniformity of interstate commerce.

Shelley v. Kraemer (1948)

Hurd v. Hodge (1948)

Morgan v. Virginia (1946)

Bob-Lo Excursion Company v. Michigan (1948)

Henderson v. United States (1950)

Enforcing the “Equal” in Separate but Equal

The Vinson Court made racial segregation all but impossible in a series of cases involving public universities and professional schools. Without overturning the separate but equal doctrine, the Court held that the doctrine required the states to admit black students to existing academic programs or else establish new facilities and programs to accommodate them. It would no longer be acceptable for public institutions to deny African Americans admission simply because the schools did not have separate facilities for them. The price of continuing segregation in higher education now became prohibitively high, putting the states under heavy pressure to desegregate their universities and professional schools.

Missouri ex rel. Gaines v. Canada (1938)

Sipuel v. University of Oklahoma (1948)

Fisher v. Hurst (1948)

Sweatt v. Painter (1950)

McLaurin v. Oklahoma State Regents (1950)

Eisenhower and the Return of Reason

Dwight D. Eisenhower was elected president in 1953, the first Republican to hold that office in twenty years. Senator McCarthy’s hunt for Communists within the federal government continued unabated until he finally discredited himself by accusing the U.S. Army of harboring subversives. The subsequent Senate hearings were televised and for the first time the nation witnessed his bullying tactics. The spectacle cost McCarthy his credibility, and support for his anticommunist witch hunts thereafter vanished almost as quickly as it had begun.

Dwight D. Eisenhower (links to biographical information and primary sources)

Film: Edward R. Murrow Report on Senator Joseph McCarthy

The Bricker Amendment

The United Nations was established after World War II for the purpose of promoting global peace, security, and development. When the United States joined the organization and subscribed to its charter, concern arose over the charter’s implications for domestic law. Article 55, for example, obligated member states to promote “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.” Judicial decisions invalidating state laws on the ground that they violated Article 55 caused a political reaction. A constitutional amendment limiting the domestic effect of treaties was proposed, but fell one vote short of the required two-thirds majority in the Senate.

United Nations Charter (1945)

Oyama v. California (1948)

Fujii v. State (1952)

Chapter 21

Eisenhower’s Court Appointments

President Eisenhower’s appointment of Earl Warren as chief justice of the United States was one of the most enduring legacies of his presidency. A judicial activist of great political skill, Warren brought greater cohesion and direction to the Court than it had experienced during the Vinson years. He led the Court and indeed the nation through historic changes in racial, political, and social dynamics during times of deep unrest.

Earl Warren

Oral History Interview with Earl Warren (Transcript)

John Marshall Harlan

William J. Brennan

Video: Interview with William J. Brennan

Charles E. Whittaker

Potter Stewart

Desegregating Public Education

The work of the Vinson Court prepared the way for the total dismantling of racial segregation. When the Court struck down the separate but equal doctrine in Brown, Chief Justice Warren made sure that the justices spoke unanimously in order to make clear that no other outcome was possible. The opinion of the Court spoke directly to the nation; it was brief, readable, and easily understood. Recognizing that the nation needed time to dismantle segregated school systems, the lower federal courts were directed to implement the decision with “all deliberate speed.” When southern states resisted implementation of the decision, President Eisenhower sent federal troops in to enforce desegregation. The Court, for its part, spoke forcefully in dealing with resistance to a desegregation order. “The time has not come when an order of a Federal Court must be whittled away, watered down, or shamefully withdrawn in the face of violent and unlawful acts of individual citizens.”

Brown v. Board of Education of Topeka I (1954)

Brown v. Board of Education of Topeka II (1954)

Bolling v. Sharpe (1954)

Cooper v. Aaron (1958)

Anticommunism and the Court

The Warren Court brought some of the worst abuses of the House Un-American Activities Committee to a stop. In the 1955 Quinn and Emspak cases, the Court held that witnesses before the committee had a right to invoke the Fifth Amendment privilege against self-incrimination, frustrating the bullying tactics of investigators. The Court went on to overturn statutes allowing states to dismiss employees who invoked the Fifth Amendment as violations of the Due Process Clause of the Fourteenth Amendment. The biggest blow to HUAC came when the Court ruled in Watkins (1957) that the investigative powers of Congress extend only to its legislative functions, thereby curtailing the fishing expeditions with which HUAC had ruined countless lives.

Quinn v. United States (1955)

Emspak v. United States (1955)

Slochower v. Board of Education (1956)

Ullmann v. United States (1956)

United States v. Rumely (1953)

Watkins v. United States (1957)

Sweezey v. New Hampshire (1957)

The Smith Act and the Courts

In Pennsylvania v. Nelson (1947) the Warren Court ended the prosecution of Communist Party members under state sedition laws. Individuals who had been prosecuted under the Smith Act by the federal government were frequently also prosecuted by state authorities under state sedition laws. Sequential state and federal prosecutions for the same offense are constitutional under United States v. Lanza (1922), but in Nelson the Court held that federal sedition law preempts state sedition law.

United States v. Lanza (1922)

Pennsylvania v. Nelson (1957)

Eviscerating the Smith Act

In Yates v. United States (1957) the Court all but overturned the Smith Act. Applying a very narrow interpretation, the Court held that the statute barred advocating or teaching the violent overthrow of government only with respect to concrete action and not as an abstract principle. In addition, the Court held that the organizing section of the law applied only to the initial formation of the postwar Communist Party in 1945. Because of the three-year statute of limitations on criminal prosecutions, it became impossible to prosecute defendants under the provision.

Yates v. United States (1957)

Scales v. United States (1961)

Loyalty Programs and Due Process

The Warren Court issued a series of rulings extending due process rights that the Vinson Court had denied to federal employees accused of subversion. Government departments were held accountable to their own internal rules, and the accused were given opportunities to refute the charges against them. No longer could they be discharged on the basis of unproved and anonymous accusations.


Cole v. Young (1956)

Service v. Dulles (1957)

Vitarelli v. Seaton (1959)

Kent v. Dulles (1958)

Greene v. McElroy (1959)

Military Courts and Civilians

The expansion of United States military bases abroad in the wake of World War II raised questions about the constitutional rights of personnel deployed abroad and the rights of their family members. The Court held that military personnel do not have the same rights as civilians. Their rights are governed by military law and by the status of forces agreements in effect between the United States and the host country. But neither treaties nor status of forces agreements can deprive civilians with United States citizenship of their constitutional rights with respect to criminal proceedings on overseas bases.

United States ex rel. Toth v. Quarles (1955)

Kinsella v. Kreuger (1956)

Reid v. Covert (1956)

Wilson v. Girard (1957)

Harmon v. Brucker (1958)

Fair Trial and Full Disclosure

In Jencks v. United States (1957) the Warren Court held that defendants have a Sixth Amendment right to examine the pretrial statements made by government witnesses against them.

Jencks v. United States (1957)

Free Speech and Political Advocacy

In Brandenburg v. Ohio (1969) the Court overturned the conviction of a Ku Klux Klan member for a speech he delivered at a cross-burning ceremony. The Court affirmed the clear and present danger standard, ruling that the First Amendment protects the right to advocate freely in the presence of a hostile audience.

Brandenburg v. Ohio (1969)

Dennis v. United States (1951)

Chapter 22

New Court Appointments

Presidents Kennedy and Johnson appointed loyal liberal Democrats to the Court, jurists who shared Chief Justice Warren’s vision of the Court as an activist institution at the vanguard of social reform. Among Johnson’s nominees was Thurgood Marshall, longtime special counsel to the NAACP and a distinguished advocate before the Court in key civil rights cases. Marshall became the first African American justice to serve on the Court.

Byron R. White

Arthur J. Goldberg

Interview of Arthur J. Goldberg (Transcript)

Abe Fortas

Interview of Abe Fortas (Transcript)

Thurgood Marshall

Interactive Website: Thurgood Marshall before the Court

Video: Interview of Thurgood Marshall

The Liberals Take Charge

The strength of the liberal voting bloc was demonstrated in a series of decisions upholding the due process rights of alleged subversives. Fishing expeditions masquerading as legislative investigations were held unconstitutional on the ground that they served no legitimate legislative purpose. That HUAC had been thoroughly discredited by 1965 can be attributed in large measure to the Court’s exposure of its worst abuses. The Court similarly dealt a fatal blow to political witch hunts at the state level.

Shelton v. Tucker (1960)

Russell v. United States (1962)

Gibson v. Florida Legislative Investigation Committee (1963)

DeGregory v. Attorney General of New Hampshire (1966)

Gojack v. United States (1966)               

Twenty-Third Amendment

The Twenty-Third Amendment gives the inhabitants of the District of Columbia the right to vote in presidential elections. It authorizes the District to appoint the number of presidential electors to which it would be entitled if it were a state. The number of electors cannot exceed the number of electoral votes cast by the least populous state.

Twenty-Third Amendment (Annotated)

Revolution in Civil Rights

During the 1960s, civil rights activists threw themselves into campaigns for racial justice with renewed vigor. Sit-ins, freedom marches, and demonstrations were held throughout the nation under the charismatic leadership of such activists as the Rev. Martin Luther King, Jr. The Warren Court supported the movement by desegregating public facilities and finally striking down antimiscegenation laws as unconstitutional. It also protected the right of civil rights demonstrators to engage in peaceful protest.

Online Exhibition: The Civil Rights Era

Online Exhibition: Voices of Civil Rights

Civil Rights Resource Guide

Martin Luther King’s “I Have a Dream” Speech (Text)

Loving v. Virginia (1967)

Video: ABC News Report on Loving Case (1967)

Garner v. Louisiana (1961)

Peterson v. City of Greenville (1963)

Edwards v. South Carolina (1963)

Twenty-Fourth Amendment

The Twenty-Fourth Amendment prohibits the use of poll taxes as a voting qualification in federal elections. It also authorizes Congress to enforce the prohibition with appropriate legislation. In Harper v. Virginia Board of Elections (1966), the Supreme Court extended the ban on poll taxes to state elections as well.

Twenty-Fourth Amendment (Annotated)

Harper v. Virginia Board of Elections (1966)

Breedlove v. Suttles (1937)

Congressional Action on Civil Rights

Congress passed a series of laws bringing to bear the resources of the federal government to protect civil rights. A Commission on Civil Rights was established with authority to investigate racial discrimination in suffrage, and the Justice Department’s Civil Rights Division became more active in prosecuting offenses. The Civil Rights Act of 1964 prohibited both public and private racial discrimination, along with discrimination in public accommodations. It established the Equal Employment Opportunity Commission to deal with compliance in employment practices, and imposed tight controls on the use of literacy tests in elections.

Civil Rights Act of 1957 (primary sources)

Civil Rights Act of 1960

Statement by the President upon Signing the Civil Rights Act of 1960 (May 6, 1960)

Civil Rights Act of 1964

Video: President Lyndon B. Johnson Signs Civil Rights Act of 1964

The Court and Title II of the 1964 Civil Rights Act

Predictably, the constitutionality of the public accommodations provision of the 1964 Civil Rights act was challenged in a series of cases before the Supreme Court. The Court upheld the provision as a legitimate exercise of Congress’s commerce power. The Court would later use the public accommodations provision to overturn state trespass convictions in sit-in cases.

Heart of Atlanta Motel v. United States (1964)

Katzenbach v. McClung (1964)

Hamm v. City of Rock Hill (1964)

Voting Rights Act of 1965

The Voting Rights Act of 1965 suspended literacy tests in any state where the attorney general found that more than 50% of persons of voting age had not registered or voted in the last presidential election. Federal examiners would be appointed to supervise elections in the offending states, and voting laws could not be changed without the approval of the attorney general. All provisions of the law were upheld in a series of challenges during the 1960s.

Louisiana Literacy Test

Links to Literacy Tests Administered in Alabama, Louisiana, Mississippi, and South Carolina

Voting Rights Act of 1965

Video: Lyndon Johnson Remarks on the Signing of the Voting Rights Act of 1965

South Carolina v. Katzenbach (1966)

Katzenbach v. Morgan (1966)

Reitman v. Mulkey (1967)

Civil Rights Act of 1968

The assassination of Martin Luther King, Jr., set the stage for further civil rights legislation. The 1968 Civil Rights act prohibited racial and religious discrimination in the sale or rental of housing in dwellings with five units or more. The measure was upheld under the Thirteenth Amendment as a legitimate exercise of Congress’s power to eliminate all incidents of slavery in the United States. According to the Court, the denial of housing to people on the basis of race or religion denoted servile status incompatible with the amendment.

Video: CBS News Report on Assassination of Martin Luther King (1968)

Civil Rights Act of 1968

Video: President Lyndon B. Johnson’s Remarks on Signing the Civil Rights Act (April 11, 1968)

Jones v. Alfred H. Mayer Company (1968)

Immigration Act of 1965

The Immigration and Nationality Act of 1965 abolished the quota system that had governed immigration policy since 1924, replacing it with a system based on immigrants’ skills and family ties with citizens or residents of the United States.

Immigration and Nationality Act of 1965

President Lyndon B. Johnson’s Remarks at the Signing of the Immigration Bill, Liberty Island, New York (October 3, 1965)

Hernandez v. Texas (1954)

Chapter 23

Equalizing the Ballot

The gerrymandering of electoral districts to favor particular political parties or candidates was a practice dating back to the English origins of American government. But the Supreme Court was reluctant to become involved in challenges to districting schemes. Most notably, the Court declined to hear a redistricting case in Colegrove v. Green (1946) on the ground that the issues involved were essentially political and therefore nonjusticiable. But the Warren Court created an exception to Colegrove in Gomillion v. Lightfoot (1960), where racial gerrymandering was involved.

Colegrove v. Green (1946)

Gomillion v. Lightfoot (1960)

“Baffling Boundaries: The Politics of Gerrymandering”

Baker v. Carr

Two years later, the Court overturned Colegrove completely in Baker v. Carr (1962), a case involving demands for reapportionment of electoral districts in Tennessee to reflect population changes. Speaking for the majority, Justice Brennan wrote: “The mere fact that the suit seeks protection of a political right does not mean it presents a political question.” The case triggered a series of challenges to state apportionment schemes and involved the Court directly in reshaping the political landscape of the nation.

Baker v. Carr (1962)

Wesberry v. Sanders (1964)

Gray v. Sanders (1963)

Reynolds v. Sims (1964)

Twenty-Fifth Amendment

Ratified in 1967, the Twenty-Fifth Amendment provides for the appointment of an acting president in the event that the sitting president cannot perform his official functions. It also provides for filling vacancies in the vice presidency.

Twenty-Fifth Amendment (Annotated)

School Prayer and the Court

The Warren Court took up the issue of religion in public education in a series of Establishment Clause cases. The Court ruled that Bible reading and voluntary prayer programs in public schools violate the separation of church and state. It also struck down a state law prohibiting the teaching of evolution in public schools as an indirect endorsement of religious beliefs.

Engel v. Vitale (1962)

Abington School District v. Schempp (1963)& Murray v. Curlett (1963)

Epperson v. Arkansas (1968)

Public Funding of Church-Related Schools

The Court did not preclude all relationships between the government and religious institutions. In Board of Education v. Allen (1968), the Court upheld a New York law requiring local school boards to provide free textbooks to children attending private and parochial schools on the ground that the law benefited the children and not the schools.

Board of Education v. Allen (1968)

Sunday Closing Laws

The Court took a pragmatic approach to church-state relations in the Sunday Closing Cases (1961). At issue was the constitutionality of state laws requiring businesses to close on Sunday. Although such legislation had religious origins, the Court ruled that setting aside Sunday as a day of rest had acquired a secular significance that supported the constitutionality of the laws.

Sunday Closing Cases (1961)

Libel and the First Amendment

The Warren Court expanded press freedom under the First Amendment by ruling that the legal protections against libel enjoyed by private persons does not extend to public figures. With respect to the latter, the publication must not only be false but published with knowledge that it is false or with reckless disregard for the truth. In a series of cases, the Court provided guidelines for distinguishing public from private persons.

New York Times v. Sullivan (1964)

Garrison v. Louisiana (1964)

Rosenblatt v. Baer (1966)

Curtis Publishing Company v. Butts (1967)

Beauharnais v. Illinois(1952)

Obscenity and the First Amendment

For all the focus and clarity it brought to other First Amendment issues, the Warren Court seemed confounded by obscenity cases. In formulating guidelines to distinguish obscene materials from protected speech, the Court became entangled in a web of subjective issues involving prurience, community standards, and socially redeeming value. In Roth v. United States (1957) Justice Douglas, who believed that the First Amendment protected all forms of speech, criticized the Court’s approach as capricious and destructive of free expression.

Butler v. Michigan (1957)

Roth v. United States (1957)

Alberts v. California (1957)

Regina v. Hicklin (1868)

Manual Enterprises v. Day (1962)

“John Cleland’s Memoirs” v. Massachusetts (1966)

Ginzburg v. United States (1966)

Mishkin v. New York (1966)

Ginsberg v. New York (1968)

Stanley v. Georgia (1969)

Interstate Circuit v. Dallas (1968)

Privacy and the Constitution

In Griswold v. Connecticut (1965) the Court struck down a nineteenth-century Connecticut law banning contraception on the ground that it violated the individual’s constitutional right to privacy. No such right existed at common law, nor is it mentioned in the Constitution or Bill of Rights. However, Justice Douglas, speaking for the majority, held that the right to privacy can be inferred from the “zones of privacy” protected by the First, Third, Fourth, and Fifth Amendments.

Griswold v. Connecticut (1965)

Chapter 24

The Exclusionary Rule

Some of the most far-reaching decisions of the Warren Court dealt with criminal due process and the rights of the accused during the investigation and trial. The first breakthrough occurred in Mapp v. Ohio (1961), when the Court extended the Fourth Amendment guarantees against unreasonable searches or seizures against the states.

Weeks v. United States (1914)

Wolf v. Colorado (1949)

Rochin v. California (1952)

Mapp v. Ohio (1961)

News Article: Alexander Wohl, “Mapp v. Ohio Turns Fifty”

Cruel and Unusual Punishments

Another major achievement of the Warren Court was the extension of the Punishments Clause of the Eighth Amendment to the states in Robinson v. California (1962). The decision incorporated the federal guarantee into the Due Process Clause of the Fourteenth Amendment.

Louisiana ex rel. Francis v. Resweber (1947)

Article: William Wiecek, “Felix Frankfurter, Incorporation and the Willie Francis Case”

Robinson v. California (1962)

The Right to Counsel

While the Court recognized a right to counsel in Powell v. Alabama (1932), the right was limited in Betts v. Brady (1942) to defendants in capital cases. The Court overturned Betts in Gideon v. Wainwright (1963), ruling that indigent defendants in felony cases are entitled to court-appointed counsel because without adequate representation they cannot be assured a fair trial.

Powell v. Alabama (1932)

Betts v. Brady (1942)

Johnson v. Zerbst (1938)

Uveges v. Pennsylvania (1948)

Carnley v. Cochran (1962)

Gideon v. Wainwright (1963)

“Fifty Years Later: The Legacy of Gideon v. Wainwright”

Douglas v. California (1963)

Police Practices and the Right to Counsel

In Escobedo v. Illinois (1962) the Court held that the right to counsel arises not just at trial but during police investigation. Speaking for the 5–4 majority, Justice Goldberg held that the right is triggered when the investigation “shifts from investigatory to accusatory—when its focus is on the accused and its purpose is to elicit a confession.” Denial of access to counsel renders any incriminating statements made by the suspect during interrogation inadmissible against him.

Escobedo v. Illinois (1962)

Self-Incrimination and the Court

In Twining v. New Jersey (1908) the Court held that the Fourteenth Amendment did not extend the Fifth Amendment guarantee against compulsory self-incrimination to the states. The Warren Court narrowly overturned this ruling in Malloy v. Hogan (1964) by a 5–4 vote.

Twining v. New Jersey (1908)

Adamson v. California (1947)

Malloy v. Hogan (1964)

Miranda v. Arizona

Miranda v. Arizona (1966) marked the culmination of the Warren Court’s jurisprudence with respect to criminal due process. In Miranda, the Court held that persons taken into police custody must be informed “in clear and unequivocal terms” of their right to remain silent, that they have a right to counsel, and that counsel will be provided if requested. The case caused much controversy punctuated by charges that the Court had tilted the scales of justice in favor of the criminal classes and against the interests of the law-abiding public.

Miranda v. Arizona (1966)

Video: Interview with Ret. Capt. Carroll Cooley, Arresting Officer of Ernesto Miranda

The Right of Confrontation

The Court began incorporating the guarantees of the Sixth Amendment into the Fourteenth in Powell v. Alabama (1932) and In re Oliver (1948). The Warren Court continued this process by incorporating the right to confront accusing witnesses in open court into the Fourteenth Amendment.

In re Oliver (1948)

Pointer v. Texas (1965)

Right to Compulsory Process

The Sixth Amendment right to compulsory process was incorporated against the states in Washington v. Texas (1967).

Washington v. Texas (1967)

Impartial Trial Guarantee

The Sixth Amendment right to an impartial trial was incorporated against the states in Parker v. Gladden (1966).

Parker v. Gladden (1966)

Right to a Speedy Trial

The Sixth Amendment right to a speedy trial was incorporated against the states in Klopfer v. North Carolina (1967).

Klopfer v. North Carolina (1967)

Jury Trial

The right to jury trial was the last of the Sixth Amendment guarantees incorporated into the Fourteenth Amendment. The Warren Court ruled that due process of law entitles defendants to a fair trial, and that jury trial is best suited to provide it.

Maxwell v. Dow (1900)

Duncan v. Louisiana (1968)

Double Jeopardy

The Fifth Amendment guarantee against double jeopardy was the last Bill of Rights protection incorporated against the states by the Warren Court. In Benton v. Maryland (1969), the Court overturned Palko v. Connecticut (1937) and barred the states from prosecuting defendants more than once for the same offense.

Palko v. Connecticut (1937)

Benton v. Maryland (1969)

Federalism and Double Jeopardy

Federalism imposes limits on the protection afforded by the rule against double jeopardy. Both the state and federal governments, as separate sovereigns, have jurisdiction to prosecute violations of their laws regardless of prosecutions for the same offense by the other sovereign. The rule only precludes more than one prosecution for the same offense by the same sovereign.

United States v. Lanza (1922)

Bartkus v. Illinois (1959)

Chapter 25

Court Appointments

Richard Nixon was elected president in part on his pledge to appoint law-and-order justices to the Supreme Court who would halt the judicial activism of the Warren era. Chief Justice Warren E. Burger and his other appointees were moderately conservative, but, with the exception of Justice Rehnquist, flexible and pragmatic on most public issues. Although they chipped away at some of the rulings of the Warren Court, its key decisions were not overturned. Despite the polarizing politics of the 1970s, the Burger Court in retrospect turned out to be a remarkably stable and principled institution.

Warren E. Burger

Harry A. Blackmun

Lewis F. Powell, Jr.

William H. Rehnquist

Vietnam and the War Powers

Since 1801, when President Jefferson committed naval forces to the Barbary War, the president has been able to wage de facto war as commander-in-chief without a formal declaration of war by Congress. During the early 1960s, President Kennedy sent American troops to South Vietnam to serve as military advisers against Communist insurgents. And when North Vietnam attacked American naval vessels in the Gulf of Tonkin, President Johnson secured a resolution from Congress authorizing him to repel attacks against the armed forces of the United States. Johnson treated the resolution as a de facto declaration of war and committed over half a million troops to the Vietnam conflict. Constitutional challenges to American involvement were brought before the Supreme Court, but the Court declined to consider the issue on the ground that it raised political questions beyond the jurisdiction of the Court.

Durand v. Hollins (1860)

Gulf of Tonkin Resolution

Text: President Nixon’s Address to the Nation on the Vietnam War (November 3, 1969)

Video: President Nixon’s Address to the Nation on the Vietnam War (November 3, 1969)

Massachusetts v. Laird (1970)

Holtzman v. Schlesinger (1973)

Restriction of Symbolic Speech

The Military Selective Service Act of 1967, which subjected men between the ages of nineteen and thirty-five to conscription, encountered widespread opposition. Thousands of young men publicly burned their draft cards to demonstrate symbolically their opposition to American involvement in the Vietnam conflict. Since destroying draft cards was a federal offense, the Court had to decide whether symbolic speech under the First Amendment trumped the authority of Congress to enforce conscription. In United States v. O’Brien (1968) the Court ruled that the burning of draft cards is not a form of protected symbolic speech, because the government has a substantial interest in maintaining an orderly and efficient draft.

Video: Newsreel, Anti-War March (1967)

United States v. O’Brien (1968)

Hart v. United States (1968)

Holmes v. United States (1968)

War Powers Act

When the Vietnam conflict ended in 1973, Congress passed the War Powers Act in an attempt to prevent future de facto wars. The act limits the circumstances under which the president can commit the armed forces to combat, and places time limits on overseas military interventions absent congressional authorization. From a practical standpoint, the War Powers Act is unenforceable, because it would be politically impossible for Congress to withhold support once American forces are committed to combat. Nor would the Court be likely to rule on the constitutionality of a statute that clearly involves a political question.                                                

War Powers Act

Guide to War Powers Resolution

The Pentagon Papers           

One of the nation’s most important press freedom cases arose from the public disclosure of materials that had been classified as top secret by the Pentagon. The materials, commonly referred to as the Pentagon Papers, were part of a study commissioned by Secretary of Defense Robert McNamara on the history of United States policy in Indochina. A researcher who had worked on the study leaked some of the materials to the press. When the Justice Department secured a temporary injunction against the New York Times barring publication of the material, the Supreme Court ruled against the government on the ground that it had failed to meet the burden of proof needed to justify restraint on publication.

The Pentagon Papers (links to full text)

The Pentagon Papers: Secrets, Lies, and Audiotapes (Links to Audio Files and Briefs in the Pentagon Papers Case)

Essay: Jordan Moran, “The First Domino: Nixon & the Pentagon Papers” (with links to audio files)

New York Times v. United States (1971)

Watergate and Executive Privilege

In the wake of a break-in at the National Democratic Committee’s headquarters during the 1972 election, the Senate undertook an investigation into potential White House involvement. A Select Committee was appointed to oversee the investigation, as well as a special prosecutor to deal with prosecutions resulting from the investigation. The investigation produced a political standoff when President Nixon refused to turn over audio tapes of conversations in the Oval Office. Nixon claimed that the tapes were protected by executive privilege and that the separation of powers doctrine barred any branch of government from dictating to another branch. The case finally reached Supreme Court, which recognized for the first time that a qualified executive privilege does indeed exist. However, the privilege could not be invoked to frustrate criminal proceedings already underway in the courts. The Court did not rule on whether the privilege could be exercised to frustrate congressional investigations. In any case, the president, already facing impeachment for obstructing the investigation, turned over the tapes to the special prosecutor, and the contents forced his resignation.

The Watergate Story: Timeline

Select Committee on Presidential Campaign Activities (The Watergate Committee)

Nixon: Raw Watergate Tape: “Smoking Gun” Section (audio and transcript)

Articles of Impeachment of President Nixon

Article: Carroll Kilpatrick, “Nixon Forces Firing of Cox; Richardson, Ruckelshaus Quit” (Washington Post, October 21, 1973)

United States v. Nixon (1974)

Video: President Nixon’s Resignation Address (August 8, 1974)

Text: President Nixon’s Resignation Address (August 8, 1974)

Chapter 26

The Burger Court and the First Amendment

The rise of mass media in the United States has presented challenges to the First Amendment rights of private individuals, the news media, and advertisers. The Burger Court’s libertarian approach to these cases helped shape the information society in which we live today.

Article: Thomas I. Emerson, “First Amendment Doctrine and the Burger Court”

Article: Geoffrey R. Stone, “The Burger Court and the Political Process: Whose First Amendment?”

Libel and Freedom of the Press

The Burger Court narrowed the public figure exception in libel suits. An individual’s newsworthiness is not in itself sufficient to support the exception. Only persons who engage in public controversy or attempt to influence public policy bear a higher burden of proof in libel cases.

Gertz v. Robert Welch, Inc. (1974)

Time Inc. v. Firestone (1976)

Commercial Speech Protected

The Court accorded commercial speech protection under the First Amendment, ruling that restrictions on advertising must be reasonably related to protecting the public interest. It also held that advertisements concerning public issues and political campaigns enjoy a higher degree of protection than advertisements for commercial purposes. The Court struck down state legislation that impinged on press freedom, ruling that the press could publish any information that was already on the public record, regardless of whether the plaintiff’s reputation suffered injury as a result.

Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council (1976)

Metromedia v. San Diego (1981)

Cox Broadcasting Corporation v. Cohn (1975)

Smith v. Daily Mail Publishing Co. (1979)

Protection of Political Speech

In Buckley v. Valeo (1976) the Supreme Court considered whether and to what extent the federal government can limit donations to political campaigns. The Court upheld restrictions on political contributions but ruled that limits on spending by the candidates themselves are unconstitutional under the First Amendment.

The Federal Election Campaign Laws: A Short History

Buckley v. Valeo (1976)

Press Freedom and Sixth Amendment Rights

In a series of cases involving media access to judicial proceedings, the Supreme Court held that the press does not have an absolute right of access. Where press coverage would deny the accused a fair trial, judges can prohibit reporters from publishing prejudicial information. Similarly, pretrial hearings can be closed to the public in order to protect the defendant’s Sixth Amendment right to a fair trial. The trial itself must be open to the public absent a compelling public interest in closure. However, the press itself has no special First Amendment right to cover judicial proceedings.

Estes v. Texas (1965)

Sheppard v. Maxwell (1966)

Nebraska Press Association v. Stuart (1976)

Gannett v. DePasquale (1979)

Richmond Newspapers v. Virginia (1980)

Confidentiality and the Press

The Burger Court refused to afford the press constitutional protection not available to ordinary citizens. It upheld the power of the judiciary to compel journalists to identify their confidential sources, and held that the offices of news media are subject to search in the course of criminal investigations.

Branzburg v. Hayes (1972)

Zurcher v. Stanford Daily (1978)

Herbert v. Lando (1979)

Deeper into the Obscenity Bog        

The Burger Court abandoned the national obscenity standards formulated by the Warren Court, adopting instead a decentralized approach based on local community sensibilities. The upshot was that what qualified as constitutionally protected speech in one state might be prohibited in others.

Miller v. California (1973)

Hamling v. United States (1974)

Splawn v. California (1977)

Separation of Church and State

Assuming a stance of “benevolent neutrality” on church-state issues, the Burger Court upheld the tax-exempt status of church property against Establishment Clause challenges, and expanded the protection afforded by the Free Exercise Clause. The Court exempted Amish children from a compulsory public education statute, and barred the prosecution of individuals for obscuring the state motto on their license plates for religious reasons. The Court attempted to steer a neutral middle course between the First Amendment rights of individuals and the power of the states to legislate the public interest.

Walz v. Tax Commission (1970)

Wisconsin v. Yoder (1972)

Reynolds v. United States (1878)

Wooley v. Maynard (1977)

Generally Applicable Laws Doctrine

The Court took the position that the First Amendment protects all religious beliefs but not all religious practices. Claiming that a law interferes with one’s religious practices does not automatically exempt a claimant from generally applicable laws. However, laws cannot be enacted that target the practices of specific religious groups. All prohibitions must be general and not primarily applicable to the practices of any particular group.

Employment Division, Department of Human Services of Oregon v. Smith (1990)

Sherbert v. Verner (1963)

Religious Freedom Restoration Act (1993)

Church of the LukumiBabalu Aye v. City of Hialeah (1993)

City of Boerne, Texas v. Flores (1997)

Weakening the Separation of Church and State

Whether schools operated by religious institutions are eligible for public subsidies was one of the most divisive issues before the Burger Court. In Lemon v. Kurtzman (1971), the Court formulated a test for determining the constitutionality of public assistance to church-related school programs: “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive government entanglement with religion.” The elements of the Lemon Test have proven subjective in application, leading to unpredictable results in particular cases.

Lemon v. Kurtzman (1971)

Tilton v. Richardson (1971)

Roemer v. Maryland Public Works Board (1976)

Committee for Public Education v. Nyquist (1973)

Meek v. Pittenger (1975)

Wolman v. Walter (1977)

Committee for Public Education v. Regan (1980)

Mueller v. Allen (1983)

Agostini v. Felton (1997)

Zelman v. Simmons-Harris (2002)

Frothingham v. Mellon (1923)

Flast v. Cohen (1968)

Chapter 27

Civil Rights and Affirmative Action

Although the Court’s ruling in Brown called for desegregation with “all deliberate speed,” change came slowly. Implementing integration was one of the most pressing issues before the Burger Court. But once the legal foundations of segregation crumbled, broader questions about racial and gender equality surfaced, raising issues that the Court would grapple with well into the twenty-first century.

Timelines of Supreme Court Desegregation, Affirmative Action, and Voting Rights Cases

Timeline of Major Supreme Court Decisions on Women’s Rights

Online Exhibition: NAACP: A Century in the Fight for Freedom, 1909-2009

School Busing

Conceding that the “all deliberate speed” formula for desegregation had failed, the Court in 1969 declared that dual school systems had to be terminated immediately. The methods adopted to achieve this goal generated heated controversy. Among the most controversial were race-conscious school assignments and busing programs for desegregating formerly segregated school districts. Both were upheld as constitutional for school districts created by de jure segregation. But such extraordinary remedial measures were rejected for de facto segregation resulting from demographic patterns unrelated to official segregation policy.

Green v. County Board of New Kent County (1968)

Alexander v. Holmes County Board of Education (1969)

Swann v. Charlotte-Mecklenburg Board of Education (1971)

Keyes v. School District No. 1, Denver, Colorado (1973)

Milliken v. Bradley (1974)

Dayton Board of Education v. Brinkman (1977)

Columbus Board of Education v. Penick (1979)

Affirmative Action

Preferential programs to bring minorities into the mainstream of American life were adopted as a counterpart to the integration of the public school systems. Title VII of the 1964 Civil Rights Act prohibited job discrimination based on race. In a series of cases, the Court interpreted Title VII expansively in order to facilitate the entry of qualified minority employees into the labor force through preferential hiring programs. The Court struck down qualifying tests not deemed fair and relevant to the skills required for the job.

Civil Rights Act of 1964 (Title VII)

Griggs v. Duke Power Company (1971)

Washington v. Davis (1976)

Ricci v. DeStefano (2009)

Racial Quotas and the Court

In Regents of the University of California v. Bakke (1978), a sharply divided Court rejected the use of racial quotas by public universities in preferential admissions programs. The majority distinguished between the quotas upheld in desegregation programs, which remedied past wrongs committed by the school districts in question, and quotas used by universities to foster diversity in the student body. Absent a showing that the university had engaged in discriminatory practices in the past, the use of racial quotas during the admissions process violated the constitutional rights of nonminority applicants. On the other hand, the Court upheld a quota program created by Congress for minority employment on the ground that it was “remedial and corrective for past wrongs, and therefore constitutional.” Ultimately, the Court held that all racial preferences and set-asides, whether at the state or federal level, must meet the strict scrutiny standard of being narrowly tailored to serve a compelling governmental interest.

Regents of the University of California v. Bakke (1978)

United Steelworkers v. Weber (1979)

Fullilove v. Klutznick (1980)

City of Richmond v. J.P. Croson Co. (1989)

Adarand Constructors v. Pena (1995)

Memphis Firefighters v. Stotts (1984)

Wygant v. Jackson Board of Education (1986)

Firefighters v. Cleveland (1986)

Sheet Metal Workers v. Equal Opportunity Commission (1986)

Women’s Rights

The civil rights movement of the 1960s brought women’s rights to the forefront of public debate. The Burger Court issued a number of important decisions striking down barriers to gender equality in employment under Title VII of the 1964 Civil Rights Act, which prohibited gender discrimination as well as racial discrimination. It also struck down discriminatory state and federal laws on the ground that they imposed arbitrary gender classifications in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

Goesaert v. Cleary (1948)

Phillips v. Martin Marietta Corporation (1971)

Corning Glass Works v. Brennan (1974)

Dothard v. Rawlinson (1977)

Los Angeles Department of Water and Power v. Manhart (1978)

Reed v. Reed (1971)

Cleveland Board of Education v. LaFleur (1974)

Frontiero v. Richardson (1973)

Taylor v. Louisiana (1975)

Craig v. Boren (1976)

Orr v. Orr (1979)

Gender Classification and Heightened Scrutiny

In Frontiero v. Richardson (1973), the Court came within one vote of subjecting gender discrimination to the same strict scrutiny test that requires the government to prove that the classification at issue serves a compelling governmental interest. Rather than subject gender discrimination to the rational basis test, in Craig v. Boren (1976) the Burger Court introduced a third level of judicial scrutiny to constitutional analysis: heightened (or, intermediate) scrutiny. Under it, the government must prove that the challenged gender classification serves an important governmental interest. The standard has not been consistently applied, and gender classifications in everything from criminal law to military conscription have been upheld.

Geduldig v. Aiello (1974)

Personnel Administrator v. Feeney (1979)

Kahn v. Shevin (1974)

Califano v. Webster (1977)

Michael M. v. Superior Court (1981)

Schlesinger v. Ballard (1975)

Rostker v. Goldberg (1981)

The Equal Rights Amendment

Besides pressing for change before the Court and in Congress, women’s rights advocates sought a constitutional amendment guaranteeing complete legal equality to women. The proposed Equal Rights Amendment stipulated, “Equality of rights under the law shall not be abridged by the United States or by any State on account of sex.” The amendment authorized Congress to enforce its provisions with appropriate legislation. However, the amendment fell three states short of the three-fourths majority required when the deadline for ratification passed in 1982.

Equal Rights Amendment

Martha Griffiths and the Equal Rights Amendment

House Judiciary Report on the Equal Rights Amendment (January 26, 1971)

Chapter 28

Reproductive Rights

The Court’s recognition of a constitutional right to privacy in Griswold served as the basis for a line of divisive rulings on reproductive rights. In Roe v. Wade (1973) the Court held that the right to privacy encompasses a woman’s right to choose whether or not to terminate her pregnancy. Besides recognizing the right of women to obtain an abortion, the Court outlined the permissible restrictions a state might impose on that right, and prescribed a trimester framework within which abortions might be regulated. Critics denounced the holding as judicial legislation, and opposition to the decision divides the country down to the present.

Roe v. Wade (1973)  

Planned Parenthood of Missouri v. Danforth (1976)

News Article: “Justice Ginsburg: Roe v. Wade Decision Came Too Soon”

Book: Before Roe v. Wade: Voices that Shaped the Abortion Debate before the Supreme Court’s Ruling

Public Funding for Abortion

State and federal legislators responded to Roe by limiting public funding for abortions. In some states, public funding was available only for abortions deemed medically necessary. The Hyde Amendment prohibited the use of federal funds even for therapeutic abortions. The Supreme Court upheld the funding restrictions, reasoning that the constitutional right to an abortion does not include a constitutional right to publicly funded abortions.

While the states need not facilitate abortions, neither may they obstruct the right to obtain them. In Akron v. Akron Center for Reproductive Health (1983), the Court struck down a state measure requiring women seeking an abortion to be hospitalized for the procedure, and for physicians to read them a statement that “the unborn child is a human life from the moment of conception[.]” The Court invalidated the law as an obstacle to abortion without any medical justification.

Maher v. Roe (1977)

Harris v. McRae (1980)

Akron v. Akron Center for Reproductive Health (1983)

Attempts to Circumvent Roe

Similarly, the Court struck down a Pennsylvania statute requiring physicians to advise women of alternatives to abortion and to record personal information about women seeking abortions. The 5–4 majority held that the law had the effect of intimidating women seeking abortions and preventing them from making a free choice whether or not to terminate the pregnancy. But three years later, a new majority emerged on the Court more willing to allow the states greater latitude in regulating reproductive rights. By a 5–4 margin in Webster v. Reproductive Health Services (1989), the Court upheld a Missouri statute declaring that fetuses have the same rights as other persons, and banning nontherapeutic abortions in medical facilities receiving public funds.

Thornburgh v. American College of Obstetricians and Gynecologists (1986)

Webster v. Reproductive Health Services (1989)

Roe v. Wade Modified

The Court’s ruling in Webster prompted a flurry of state legislation restricting access to abortions and imposing requirements on the physicians who performed them, setting the stage for a review of Roe. In Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), the court reaffirmed Roe by a narrow 5–4 margin. But the Court also upheld the right of the states to regulate abortions more closely than before. The Court held that regulations touching upon abortion are invalid only if they impose an “undue burden” on the woman’s right to obtain an abortion. It also rejected the trimester framework prescribed by the Roe court, nor did it require government to assume a neutral stance on the abortion decision. That this modified version of Roe survived by a single vote underscores the unsettled state of reproductive rights in America.

Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)

Partial-Birth Abortions

In Stenberg v. Carhart (2000), the Court invalidated a Nebraska statute categorically prohibiting partial-birth abortions on the ground that the statute imposed an undue burden on the right of abortion by failing to include an exception to preserve the health as well as the life of the woman. The ruling made no new law, but it underscored the sharp divisions that exist both on the Court and in the nation with respect to abortion rights.

Stenberg v. Carhart (2000)

The Right to Die

In Cruzan v. Missouri Department of Health (1990) all nine justices of the Court recognized the right to refuse medical treatment under the common-law doctrine of informed consent. However, the justices were divided on the issue of whether anyone other than the patient could make that decision. By a 5–4 margin, the Court held that only the patient can decide to refuse medical treatment.

Cruzan v. Missouri Department of Health (1990)

Assisted Suicide

While Cruzan recognized the right to refuse medical treatment, it said nothing about whether a terminally ill patient might obtain medical assistance to bring about death. The Court upheld state prohibitions on physician-assisted suicides on the ground that the liberty protected by the Fourteenth Amendment does not include a constitutional right to assisted suicide. That issue, according to Chief Justice Rehnquist, is better left to the political process. Indeed, in Gonzales v. Oregon (2006), the Court upheld a state statute legalizing physician-assisted suicide.

Washington v. Glucksberg (1997)

Vacco v. Quill (1997)

Gonzales v. Oregon (2006)

Medical Use of Marijuana

In Gonzales v. Raich (2005) the Supreme Court held that the federal Controlled Substances Act trumps state laws legalizing the use of doctor-prescribed marijuana for medical conditions. Justices Rehnquist, O’Connor, and Thomas wrote spirited dissents, rejecting the majority’s interpretation of the commerce power as outdated and over-broad. The issue will likely be revisited in the near future, as the Obama administration has signaled that it will not challenge certain state laws legalizing medical and/or recreational marijuana.

Gonzales v. Raich (2005)

DOJ Memorandum: Guidance Regarding Marijuana Enforcement (August 29, 2013)

Gay and Lesbian Rights

In Bowers v. Hardwick (1986), the Court held that the Constitution does not afford homosexuals a right to engage in sodomy. But in 2003, the Court overturned that ruling on the ground that homosexuals’ “right to liberty under the Due Process Clause gives them the full right to engage in this conduct without intervention of the government.” The change in public attitudes toward homosexuality within the space of two decades had much to do with the ruling. While the Court recognized the right of private organizations to exclude people on the basis of their sexual orientation, it struck down state measures penalizing individuals for homosexual conduct.

Timeline: Milestones in the American Gay Rights Movement

Bowers v. Hardwick (1986)

Romer v. Evans (1996)

Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston (1995)

Boy Scouts of America v. Dale (2000)

Lawrence v. Texas (2003)

Chapter 29

Search and Seizure Standards Relaxed

Chief Justice Burger met the public controversy over the Warren Court's criminal justice jurisprudence with great subtlety and political skill. Rather than overturn the Warren-era decisions, the Court qualified them with numerous exceptions. The Court relaxed the standards of probable cause so that law enforcement officers could obtain warrants more easily. It also relaxed the standards for warrantless searches of individuals and their automobiles. Finally, the Court held that searches incidental to arrest could be conducted without a warrant in order to protect the arresting officer from concealed weapons and to prevent the suspect from destroying evidence.

United States v. Harris (1971)

Schneckloth v. Bustamonte (1973)

Terry v. Ohio (1968)

Michigan v. Long (1983)

Arkansas v. Sanders (1979)

Robbins v. California (1981)

United States v. Ross (1982)

Chimel v. California (1969)

United States v. Robinson (1973)

Gustafson v. Florida (1973)

The Good Faith Exception to Illegal Searches

The Court created a good faith exception to illegal searches. Where the police unintentionally violated the Fourth Amendment rights of a suspect, the evidence they obtained might nevertheless be admissible. Justice Brennan vigorously dissented to the exception on the ground that the purpose of the exclusionary rule was to protect constitutional rights regardless of the subjective mindset of the police.

United States v. Peltier (1975)

United States v. Leon (1984)

Restricting the Exclusionary Rule

The Burger Court further weakened the exclusionary rule by ruling that illegally obtained evidence could be used to impeach the credibility of defendants on cross-examination. It also held that defendants could not seek federal habeas review when state courts had found that no Fourth Amendment violation had occurred.

Stone v. Powell (1976)

United States v. Havens (1980)

Harris v. New York (1971)

Electronic Surveillance and the Fourth Amendment

Notwithstanding the exceptions to the exclusionary rule, the Supreme Court has defended the Fourth Amendment right to privacy from encroachments by modern technology. The Warren Court formulated a two-part test for the admissibility of evidence obtained through warrantless wire taps: Did the defendant have a subjective expectation of privacy when the surveillance occurred, and was that expectation reasonable? The Court extended that test to all forms of electronic surveillance in Kyllo v. United States (2001), which involved evidence obtained through the warrantless use of thermal imaging.

Katz v. United States (1967)

Kyllo v. United States (2001)

Miranda Rights Restricted

The Burger Court weakened the Miranda decision in a series of cases. The Court ruled that statements made while a suspect awaited the arrival of counsel might be used against him in judicial proceedings, and testimony given before a grand jury might be used against witnesses regardless of whether they had been given Miranda warnings. The Court also held that admissions made in response to offhand remarks by police officers were not protected by the exclusionary rule on the ground that Miranda rights applied only to official interrogations. Perhaps the most significant limitation to Miranda came in United States v. Patane (2004) with the ruling that the poisonous tree doctrine does not apply to Miranda violations.

Oregon v. Hass (1975)

United States v. Mandujano (1976)

Kastigar v. United States (1972)

Michigan v. Tucker (1974)

Wong Sun v. United States (1963)

United States v. Patane (2004)

Michigan v. Mosley (1975)

Brewer v. Williams (1977)

Rhode Island v. Innis (1980)

Public Safety Exception to Miranda

In New York v. Quarles (1984) the Burger Court created the so-called public safety exception to Miranda. When there is an imminent danger to the police or to the public, the need to ensure public safety outweighs the defendant's privilege against self-incrimination. Admissions made under such circumstances and absent a Miranda warning are therefore admissible against the accused.

New York v. Quarles (1984)

Congress and Miranda

In 1968 Congress abolished the exclusionary rule as a federal remedy through Section 3501 of the Omnibus Crime Act. It took approximately thirty years for the constitutionality of the provision to come before the Supreme Court because the Department of Justice ignored it and continued to issue Miranda warnings. In Dickerson v. United States (2000) the Court finally held that the Miranda warnings were not mere rules of evidence subject to congressional repeal but part of the substantive protection afforded by the Fifth Amendment. Notwithstanding the exceptions carved out of the exclusionary rule, post-Warren cases continued to affirm the right against self-incrimination by subjecting the conduct of everyone from police officers to prosecutors to judicial scrutiny.

Dickerson v. United States (2000)

Missouri v. Seibert (2004)

Doyle v. Ohio (1976)

Brown v. Illinois (1975)

Sixth Amendment Rights and the Court

The Burger Court both restricted and extended Sixth Amendment rights recognized by the Warren Court. In Kirby v. Illinois (1972), the Court held that unindicted suspects do not enjoy the same right to have counsel present at police lineups as do indicted defendants. On the other hand, in Argersinger v. Hamlin (1972) the Court extended the right of counsel to minor offenders in cases where conviction might result in a prison sentence.

United States v. Wade (1967)

Kirby v. Illinois (1972)

Argersinger v. Hamlin (1972)

Scott v. Illinois (1979)

Jury Trial Modifications

In a series of cases involving jury size, the Court held that six-member juries are sufficient in state criminal prosecutions and in federal civil cases. With respect to the former, the Court held that juries with less than six members are unconstitutional. These rulings had the practical effect of ending the longstanding common-law right to a twelve-member jury trial.

Williams v. Florida (1970)

Colegrove v. Battin (1973)

Ballew v. Georgia (1978)

Split Jury Verdicts

In In re Winship (1970) the Court held that proof of guilt beyond a reasonable doubt is required for a conviction in criminal cases under the Due Process Clause of the Fourteenth Amendment. In two subsequent cases, the Court held that nonunanimous jury verdicts in state proceedings are consistent with the reasonable-doubt standard and with the Sixth Amendment jury trial guarantee.

Johnson v. Louisiana (1972)

Apodaca v. Oregon (1972)

In re Winship (1970)

Findings of Fact for Jury Determination Only

Although the Court modified some of the common-law features of jury trial at the state level, it affirmed the exclusive power of the jury to determine the facts of the case under the Sixth Amendment. The Court overturned two state rulings in which judges rather than juries made factual determinations. It also invalidated mandatory sentencing guidelines requiring judges to increase sentences on the basis of their own fact findings.

Apprendi v. New Jersey (2000)

Blakely v. Washington (2004)

United States v. Booker (2005); United States v. Fanfan (2005)

The Right of Confrontation Modified

The Court weakened the Sixth Amendment right of confrontation by upholding a Maryland law allowing alleged victims of child abuse to testify by closed circuit camera outside the presence of the defendant. The 5–4 majority upheld the procedure as a legitimate public policy exception to actual confrontation on the ground that the state had a compelling interest in protecting child abuse victims from further psychological trauma. The fact that defense counsel had the opportunity to cross-examine the witness and that the judge and jury were able to observe the witness's demeanor was sufficient to meet the confrontation requirement of the Sixth Amendment.

Maryland v. Craig (1990)

Coy v. Iowa (1988)

Chapter 30

The Proportionality Doctrine

The Eighth Amendment prohibition against cruel and unusual punishments clearly was not intended by the Framers to proscribe the death penalty. But as early as 1910 the Court recognized that the meaning of the Eighth Amendment is not frozen in time. Punishments must be proportional to the crime, and a society’s conception of proportionality may change over time. In 1958, the Court held that the Eighth Amendment draws its meaning “from the evolving standards of decency that mark the progress of a maturing society,” setting the stage for review of capital punishment as a permissible penalty for particular crimes and offenders.

Weems v. United States (1910)

Trop v. Dulles (1958)

Litigating the Death Penalty

Early challenges to capital punishment did not question the constitutionality of the death penalty itself, but rather the circumstances under which it is imposed. In Witherspoon v. Illinois (1968) the Court overturned a state statute that automatically excluded opponents of the death penalty from juries in capital cases as a violation of the Sixth and Fourteenth Amendments. In McGautha v. California (1971) the Court upheld a state statute giving juries complete discretion over whether to impose the death penalty in capital cases. But in Furman v. Georgia (1975) the Court considered for the first time whether the death penalty violated the Eighth Amendment prohibition of cruel and unusual punishment. The Court held that while the death penalty itself was constitutional, it was administered capriciously in Georgia and therefore not constitutional there. The case led to a moratorium on executions in the United States pending the revision of state laws to give juries objective guidelines in imposing the death penalty. The Court upheld the revised statutes as constitutional, thus validating capital punishment as a permissible penalty. However, the Court would continue to narrow the circumstances under which it might be imposed.

Witherspoon v. Illinois (1968)

McGautha v. California (1971)

Furman v. Georgia (1972)

Gregg v. Georgia (1975)

Roberts v. Louisiana I (1976)

Roberts v. Louisiana II (1977)

Bell v. Ohio (1978)

Proportionality and the Death Penalty

The proportionality doctrine was used to limit the instances in which the death penalty could be imposed. The Court held that capital punishment was disproportional to the offense of rape in Coker v. Georgia (1977). It extended that ruling to cases involving the rape of children in Kennedy v. Louisiana (2008). In effect, the cases held that only the taking of life justifies the taking of life.

Coker v. Georgia (1977)

Enmund v. Florida (1982)

Kennedy v. Louisiana (2008)

Juveniles and the Death Penalty

In Thompson v. Oklahoma (1988) the Court held the death penalty cruel and unusual when applied to a fifteen-year-old. But the penalty was upheld a year later with respect to sixteen- and seventeen-year-old defendants. The Court came to these disparate conclusions by looking to the practice of states for evidence of current standards of decency.

Thompson v. Oklahoma (1988)

Stanford v. Kentucky (1989); Wilkins v. Missouri (1989)

Capital Punishment and Race

Civil rights activists have long criticized the death penalty for its disproportionate impact on minorities. In McCleskey v. Kemp (1987), the Court rejected an equal protection challenge to the death penalty in Georgia, where blacks who killed whites were 4.3 times more likely to be sentenced to death than defendants who killed blacks. The Court held that absent a showing of actual racial bias in the petitioner’s case, such statistical evidence itself could not sustain an equal protection challenge. In 2009 North Carolina passed a law allowing the admission of statistical evidence of racial bias in challenges to a death sentence, but the law was repealed by the state legislature in 2013.

McCleskey v. Kemp (1987)

National Statistics on the Death Penalty and Race

North Carolina Racial Justice Act (2009)

News Article: “North Carolina Repeals Law Allowing Racial Bias in Death Penalty Challenges” (June 5, 2013)

Habeas Corpus and the Death Penalty

Sequential habeas corpus appeals became an effective strategy for death row inmates to delay execution indefinitely. The Court put an end to the practice in McCleskey v. Zant (1991), ruling that when a capital conviction has been upheld by the highest state court, the prisoner has six months in which to file one habeas petition raising as many issues as the prisoner wants.

McCleskey v. Zant (1991)

Death Sentences and the Sixth Amendment

In Ring v. Arizona (2002), the Court applied the rule of Apprendi v. New Jersey (2000) in holding that juries, not judges, must determine whether the aggravating circumstances necessary to support a death sentence have been met.

Ring v. Arizona (2002)

Narrowing the Death Penalty

In Atkins v. Virginia (2002), the Court overturned a 1989 ruling allowing the execution of mentally retarded offenders as a violation of the Punishments Clause of the Eighth Amendment. Times had changed, according to the majority, and with them society’s evolving standards of decency had changed. The execution of mentally retarded offenders was held to be no longer constitutionally permissible. The ruling was and remains highly controversial, and will be revisited by the Court in Hall v. Florida in 2014.

Atkins v. Virginia (2002)

Penry v. Lynaugh (1989)

SCOTUSblog Coverage: Hall v. Florida

Execution of Juveniles Ends

In Roper v. Simmons, the Court ruled in a 5–4 decision that the death penalty is unconstitutional for offenders under the age of eighteen. The Court held that the prohibition of the juvenile death penalty by thirty states was sufficient evidence of a national consensus that the execution of minors was cruel and unusual. The majority also cited world opinion on the matter. As with Atkins, the decision was highly controversial, particularly the reference to foreign law in overturning domestic legislation. Critics also questioned the propriety of making the Supreme Court the moral voice of the nation.

Roper v. Simmons (2005)

Chapter 31

Changes in Court Personnel

For the twenty years following Nixon’s election to the presidency, vacancies on the Court were filled by Republican presidents. Chief Justice Burger proved a more moderate leader than conservatives had hoped for, but subsequent Republican appointments ensured that the Court did not return to the Warren years.

John Paul Stevens

Sandra Day O’Connor

Antonin Scalia

Anthony M. Kennedy

The Bork Nomination

President Reagan’s nomination of Robert Bork to the vacancy created by the retirement of Justice Powell triggered an unprecedented political firestorm. Democrats controlled the Senate, and the Judiciary Committee, under the chairmanship of Senator Joseph Biden, proved an insuperable obstacle to Bork’s confirmation. Opponents focused on Bork’s political views rather than on his judicial record, which even Bork’s critics agreed was excellent. Even though the outcome was a foregone conclusion, Bork refused to back down, forcing a full Senate vote on his confirmation. But his stand changed nothing, and confirmation was denied by the widest margin in the history of the Supreme Court.

Video: C-Span Coverage, Bork Confirmation Hearing (1987)

Bork Gives Reasons for Continuing Fight (Statement of October 9, 1987)

Article: Andrew Cohen, “The Sad Legacy of Robert Bork”(December 19, 2012)

Bush’s Court Appointments

President George H.W. Bush appointed two justices to the Court. David Souter was confirmed without serious opposition, but the confirmation hearing of Clarence Thomas quickly degenerated into the sort of political circus that had accompanied the Bork nomination. When members of the Judiciary Committee were unable to engage Thomas on political issues of the sort that had helped derail Bork’s nomination four years earlier, things took a lurid turn. A former colleague testified that she had been sexually harassed by Thomas years earlier, allegations that Thomas flatly denied. Thomas was ultimately confirmed by the Senate by the narrowest margin in more than a century.

David Souter

Clarence Thomas

Video: C-Span Footage, Thomas Confirmation Hearing (1991)

Transcript, Thomas Confirmation Hearing (1991)

Clinton’s Appointees

The Bork and Thomas confirmation hearings prompted Republicans to take the position that the professional qualifications of the nominees rather than their personal politics should guide the confirmation process. President Clinton nominated two highly qualified liberals to the Court: Ruth Bader Ginsburg, former general counsel for the ACLU, and Stephen Breyer, a noted legal scholar and public servant. Both were confirmed by the Republican-controlled Senate without serious opposition.

Stephen Breyer

Ruth Bader Ginsburg

The Clinton Impeachment

The impeachment of President Clinton was historic as only the third time in U.S. history that such proceedings were begun against a president. The proceedings marked the culmination of one of the biggest sexual and political farces in the history of the United States. A Republican-controlled House of Representatives alleged that Clinton had committed high crimes and misdemeanors when he perjured himself by lying under oath about an extramarital affair with a White House intern. The lurid details of the affair embarrassed Clinton’s supporters, but fell short of the high crimes and misdemeanors required by the Constitution. Clinton kept the presidency, but temporarily lost his license to practice law as a result.

Timeline of Clinton Impeachment

Articles of Impeachment against President William Jefferson Clinton

Washington Post: “Clinton Accused” (primary texts, news articles, and images relating to impeachment proceedings)

Bush v. Gore

The 2000 election was one of the most controversial in U.S. history. The candidates were roughly tied in electoral votes, and the outcome depended on Florida, where Bush led Gore by a few thousand votes. While Gore’s lawyers secured a Florida court order for manual recounts, Bush’s lawyers petitioned the federal courts to halt the recounts. The Supreme Court finally intervened, ruling that the Florida recount order violated guarantees of the Fourteenth Amendment. It further ordered that all recounts cease immediately, which effectively handed Bush the presidency.

Bush v. Gore (2000)

Article: Dahleen Glanton, “O’Connor Questions Court’s Decision to Take Bush v. Gore” (Chicago Tribune, April 27, 2013)

Spirits of Amendments Past

Article V of the Constitution places no time limits on ratification of proposed amendments, an omission underscored in 1992 by the ratification of the two-centuries-old Twenty-Seventh Amendment. As a practical matter, Congress has begun setting timeframes for the ratification of proposed amendments, a power recognized by the Court in Dillon v. Glass (1921).

Dillon v. Glass (1921)

Coleman v. Miller (1939)

Twenty-Seventh Amendment (Annotated)

Chapter 32

The Second Amendment

The nature and scope of the Second Amendment right to keep and bear arms remained unsettled until recently. Whether the amendment protected an individual or collective right related to militia service was clarified in District of Columbia v. Heller (2008). Speaking for a 5–4 majority in striking down a federal firearms regulation, Justice Scalia held that the amendment protects the individual's right to keep and bear arms for lawful purposes. The right may be regulated by legislation narrowly tailored to serve a compelling public interest. In McDonald v. Chicago (2010), the Court incorporated the Second Amendment into the Fourteenth, thus extending the right to keep and bear arms to both levels of government.

United States v. Miller (1939)

United States v. Lopez (1995)

Printz v. United States (1997)

District of Columbia v. Heller (2008)

McDonald v. Chicago (2010)

The War on Terror

The response to the terrorist attacks of September 11, 2001, has posed the greatest challenge to American constitutionalism in the new millennium. In a series of cases, the Supreme Court recognized the right of persons detained by the military to challenge their designation as enemy combatants in habeas corpus proceedings, thus extending the habeas jurisdiction of the federal judiciary beyond the territorial limits of the United States. The Court has held that these proceedings must meet certain minimum due process requirements. The holdings make it clear that the Court will not defer to the sweeping national security claims by the Executive that set the stage for the violation of constitutional right during World War II.

Photo Gallery: 9/11: The Day of the Attacks

9/11 Commission Report

Authorization for the Use of Military Force (September 18, 2001)

Authorization for the Use of Military Force (Legislative History)

Hamdi v. Rumsfeld (2004)

Rasul v. Bush (2004)

Rumsfeld v. Padilla (2004)

Hamdan v. Rumsfeld (2006)

Military Commissions Act

Boumedienne v. Bush (2008)  

Chapter 33

The Roberts Court

Chief Justice Roberts proved himself an adept consensus-builder in cases involving First and Eighth Amendment rights. But on deeply polarizing issues, such as race-based school assignments and voting rights, the Court remains as sharply divided as in the past.

John Roberts

Rumsfeld v. Forum for Academic and Institutional Rights (2006)

Gonzales v. O Centro Espirita Beneficente União do Vegetal (2006)

Baze v. Rees (2008)

School Desegregation

In Parents Involved in Community Schools v. Seattle School District No. 1 (2007) the Court decided by a 5–4 margin to strike down the use of race in assigning students to particular schools as violation of the Equal Protection Clause.

Parents Involved in Community Schools v. Seattle School District No. 1 (2007)

Criminal Due Process

In Herring v. United States (2009) the Court upheld and expanded the good faith exception to the exclusionary rule. The Court held that evidence obtained through an arrest and search under a cancelled warrant was admissible at trial, even though police error had kept the warrant on file. In previous cases, the error invalidating the warrant was not directly attributable to the police.

Herring v. United States (2009)

SCOTUSblog coverage of Herring v. United States

Tracking Devices and the Fourth Amendment

In United States v. Jones (2012), a unanimous Court held that installing a GPS device on a motor vehicle without a warrant violated the Fourth Amendment. The justices divided, however, on whether the defendant’s property rights or privacy rights had been violated. The majority opted for the former, holding that in attaching a GPS device to the vehicle, the police had violated his property rights.

United States v. Jones (2012)

Congressional Research Service: “United States v. Jones: GPS Monitoring, Property, and Privacy,” by Richard M. Thompson (April 30, 2012)

United States v. Knotts (1983)

United States v. Karo (1984)

Partial-Birth Abortion

In Gonzales v. Carhart (2007), the Court upheld a federal ban on partial-birth abortions that contained no exception protecting the health of women. Because the Court invalidated a Nebraska ban on partial-birth abortions in Stenberg v. Carhart (2000) for not allowing a health exception, the cases are difficult to reconcile.

Gonzales v. Carhart (2007)

Obama’s Court Appointments

President Obama has appointed two justices to the Supreme Court: Sonia Sotomayor and Elena Kagan. Sotomayor had served as a federal judge for almost twenty years prior to her nomination, receiving judicial appointments from both Republican and Democratic presidents. Kagan was Obama’s solicitor general at the time of her nomination. The Senate confirmed both without issue.

Sonia Sotomayor

Elena Kagan

Juveniles and the Eighth Amendment

The Roberts Court has expanded Eighth Amendment protections for minors convicted of crimes, ruling that mandatory life-without-parole sentences for juveniles are cruel and unusual punishment.

Graham v. Florida (2010)

SCOTUSblog Coverage of Graham v. Florida

Miller v. Alabama (2012); Jackson v. Hobbs (2012)

SCOTUSblog Coverage of Miller v. Alabama and Jackson v. Hobbs

Illegal Immigration and the States

The ruling of the Roberts Court in Arizona v. United States (2013) occasioned much political controversy. At issue was the constitutionality of an Arizona measure establishing state-level enforcement mechanisms against illegal immigrants. The Court invalidated the statute on the ground that federal power over immigration preempts state power to legislate on the subject.

Arizona v. United States (2013)

SCOTUSblog Coverage of Arizona v. United States

First Amendment Rights

Two First Amendment decisions of the Roberts Court have triggered much public debate. In Snyder v. Phelps (2011), an 8–1 majority held that political speech enjoys the highest level of First Amendment protection, even when that speech is offensive and morally repugnant. In Citizens United v. Federal Election Commission (2010), a 5–4 majority held that corporations enjoy the same free speech protection as individuals, and that regulation of their political communications is subject to strict scrutiny. The ruling overturned a line of cases subjecting corporations to a double constitutional standard.

Morse v. Frederick (2007)

Holder v. Humanitarian Law Project (2010)

United States v. Stevens (2010)

Snyder v. Phelps (2011)

SCOTUSblog Coverage of Snyder v. Phelps

Citizens United v. Federal Election Commission (2010)

SCOTUSblog Coverage of Citizens United v. Federal Election Commission

American Trade Partnership v. Bullock (2012)

Affordable Care Act

National Federation of Independent Business v. Sebelius (2012) upheld the constitutionality of the controversial Patient Protection and Affordable Care Act. Public opinion divided sharply on the statute, and speculation ran high on how the Court would rule. A sharply divided Court ruled that the ACA’s individual mandate constituted an unconstitutional exercise of the commerce power, but that it was nevertheless a constitutional exercise of Congress’s tax power. That the Court also ruled the payment not a tax for purposes of the Anti-Injunction Act puzzled many, not least the dissenting justices.

Patient Protection and Affordable Care Act

National Federation of Independent Business v. Sebelius (2012)

SCOTUSblog coverage of National Federation of Independent Business v. Sebelius

Voting Rights

In Shelby County v. Holder (2013) the Court revisited the 1965 Voting Rights Act, ruling that its Section 4 preclearance requirements were no longer applicable to changed circumstances in the modern South. The ruling did not go to the constitutionality of preclearance itself but left it up to Congress to enact new preclearance criteria.

Shelby County v. Holder (2013)

Audio Slideshow: After Shelby County

Marriage Equality and the Court

The constitutionality of federal and state measures banning same-sex marriage has arguably been the most polarizing issue before the Roberts Court. The Court declined to rule on the constitutionality of a California measure prohibiting same-sex marriages in Hollingsworth v. Perry (2013) on the ground that the parties lacked standing under Article III of the Constitution to bring the appeal. The dismissal left standing a federal district court ruling that the state ban violated the Equal Protection Clause of the Fourteenth Amendment. But in United States v. Windsor (2013), the Court overturned a federal measure limiting federal marital benefits to unions between opposite-sex couples as unconstitutional under the Fifth Amendment. The ruling left the legal status of same-sex marriages entirely up to the states.

Hollingsworth v. Perry (2013)

SCOTUSblog coverage of Hollingsworth v. Perry:

United States v. Windsor (2013)

SCOTUSblog coverage of United States v. Windsor

News Article: “Reveling in Her Supreme Court Moment” (New York Times, December 10, 2012)

General Resources

General Online Resources on United States Constitutional History

  • ConSource provides a free online library of primary sources relating to United States constitutional history.
  • The Law Dictionary is a free online dictionary of legal terms.
  • The Legal Information Institute at Cornell University provides a rich online database of legal resources, including an annotated Constitution, Supreme Court reports, and federal statutes.
  • The Library of Congress website provides links to online exhibitions as well as digitized collections of primary sources and scholarly works.
  • The Liberty Fund's Online Library of Liberty has digitized many important primary sources in Anglo-American constitutional history.
  • The Oyez project at Chicago-Kent College of Law provides an online database of Supreme Court reports, along with digitized audio files of oral argument.
  • SCOTUSblog provides late-breaking filings, news, analysis, and audio from the Supreme Court.
  • The website of the Supreme Court Historical Society provides historical information about the Court and its members, along with links to scholarly articles on U.S. constitutional history.
  • The website of the United States Supreme Court provides information about the Court's docket, along with links to recent decisions and information about the current membership of the Court.

General Pedagogical Resources