US History/Supreme Court Cases

The reader may find this section a bit different than the other sections of this book.

Introducing the Constitutional Structure of the United States


The United States is a country ruled by an association representative of, elected by, and accountable to, the people of the United States (as opposed to being ruled by a king or a dictator--in essence, a country ruled by those possessing superior capability for violence compared to anyone else); this makes the United States a "democracy", a country ruled by the people.

The association of the people of the United States - the government of the United States - is ruled by a set of previously declared principles applied in a uniform, consistent, and fair fashion to every situation the government of the United States finds itself in; these principles, and their application, are called "law"; this makes the United States a country that is ruled by law, or has the "rule of law".

But who rules the law? The law rules the law; the system of laws of the United States has certain laws that are more important than others. The highest law of the United States, the "supreme law of the land", is called the "Constitution of the United States of America"; it is a set of laws that govern laws and govern the government. It specifies what kind of laws can be made, and what the government can do. It prohibits certain types of laws from being made, and specifically forbids the government from doing certain things. And it places fundamental limits on the power of government, by specifying that every power that is not specifically granted (or specifically implied) to the government in the Constitution, the government does not possess, may not exercise, and cannot claim to have. This makes the United States a country that has a "limited government"--there are things that the government of the United States cannot do, like throw people in jail for no reason, name one religion as the only religion allowed, send the police to search homes without evidence of crimes being committed, or punish people because they say things that other people disagree with. The reader should understand that the government of the United States does not do these things not because it chooses not to do them--but because it has no power to do them.

But who rules the Constitution? The individual people of the United States do. They can change it, if it becomes necessary. It has been changed 27 times in the past two-hundred-and-twenty or so years. But the process to do so is slow, and arduous, and most people hesitate to change what has worked so well for so long, especially for light causes.

The Constitution In Practice


A word about the Constitution: it was written before the Internet, the computer, the television, nuclear power, radio, the airplane, the automobile, electricity and electric lighting, the train, or in-home running water--before 37 of the 50 current states were part of the United States--before there were any other democracies on the face of the Earth--before there were large cities in our country--and before there were industries, or corporations, or any of the other modern conveniences of life. It was written by candlelight, not by electric light, it was delivered to the 13 states by riders on horseback, not by posting it on the Web. But it was not written before there was what many Americans believe to be God, or before there was a notion that all people are equal, and have the right to be free. Many view the Constitution as a set of truths that apply themselves in similar ways in changing times.

Therefore, the Constitution can sometimes be unclear, and be subject to changing situations. In those situations, there are people who interpret the Constitution and the law of the United States; they are called judges; and the supreme interpreters of the Constitution are called Justices; there are nine of them, and together they form the Supreme Court of the United States. They decide what the Constitution means to us when a situation presents itself where the Constitution is unclear. These decisions are made when one person argues that what another person is doing (or not doing) is forbidden by the Constitution. That is why they have names like "Marbury v. Madison"; Marbury, a person, complained against Madison, a person.

When the Justices of the Supreme Court make decisions in the present, they look to their past decisions (what they call "precedents") for guidance. This is an important part of the law, because the law must be consistent. Sometimes, however, they find their past decisions to be wrong--or inapplicable--and revise them. Sometimes they are upheld, or expanded upon. In any event, there are times when Supreme Court decisions play a very, very major role in the history of the United States.

In the following sections, we name the most major decisions of the Supreme Court and discuss why they occurred, what was decided, and why the decision was important. These decisions--these interpretations of the Constitution by the Supreme Court of the United States--form an important part of the history of the United States, as the United States is a nation ruled by law.

First Constitutional Era (1787-1850)


The Union, its nature, judicial supremacy, rule of law, states' rights, federal powers and the limits thereof, allotment and allocation of powers between the several branches, the several states, and the people thereof, the question of slavery.

Marbury v. Madison 5 U.S. 137 (1803)


The day before his last in office, President John Adams appointed 42 judges to fill seats in many newly-created courts. One of these was William Marbury. The Senate confirmed the judges, and Secretary of State John Marshall signed their commissions, the paper each requires to assume his appointment. But the day Thomas Jefferson was inaugurated, he ordered his appointed Secretary of State, James Madison, not to deliver the commissions to many of the confirmed judges, Marbury included. Marbury sued to force Madison to give up the commissions. The suit was filed directly in the Supreme Court, since Marbury argued that the Judiciary Act 1789 gave the Supreme Court jurisdiction over writs of mandamus, court orders that force public officials to do things.

John Marshall, who incidentally was appointed to the position of Chief Justice on Adams' last day, wrote in the court's unanimous decision that the Court could not rule in Marbury's case because it did not have the jurisdiction to do so. Marbury had argued that Article III of the Constitution only set basic rules concerning the Supreme Court's powers, and that they could be expanded by Congress any time it wanted. Marshall disagreed, pointing to the simple logic: what was the point of having a Constitution if Congress could write laws that changed courts' jurisdictions, thus ignoring the rules explicitly stated in Article III? If laws could be written that circumvented Article III in the way that Marbury argued that the Judiciary Act should, could laws be written that allowed the courts to ignore the Constitution altogether?

In determining that the Judiciary Act was in violation of the Constitution by adding on to Article III, Marshall affirmed the all-important principle of judicial review. Judicial review is the judicial branch's, and specifically the Supreme Court's, power to declare laws in conflict with the Constitution and overturn them.

Fletcher v. Peck, 10 U.S. 87 (1810)


Fletcher v. Peck was the first case in which the Supreme Court ruled a state law unconstitutional. In the course of the westward push for the control of Indian lands, the state of Georgia took from the Indians a 35,000,000-acre (140,000 sq. km) region in the Yazoo River area known as the Yazoo Lands. This land later became the states of Alabama and Mississippi. In 1795, the Georgia legislature divided the area into four tracts. The state then sold the tracts to four separate land development companies for a modest total price of $500,000, i.e. about 1.4 cents per acre, a good deal even at 1790s prices. The Georgia legislature overwhelmingly approved this land grant, known as the Yazoo Land Act of 1795.

It was revealed that the Yazoo Land Act sale to private speculators had been approved in return for bribes. Voters rejected most of the incumbents in the next election, and the next legislature, reacting to the public outcry, repealed the law and voided transactions made under it.

John Peck had purchased land that had previously been sold under the 1795 act. Peck sold this land to Robert Fletcher and in 1803, Fletcher brought suit against Peck, claiming that he did not have clear title to the land when he sold it. The case reached the Supreme Court, which in a unanimous decision ruled that the state legislature's repeal of the law was unconstitutional. The opinion, written by John Marshall, argued that the sale was a binding contract, which according to Article I, Section 10, Clause I (the Contract Clause) of the Constitution cannot be invalidated, even if illegally secured. Today the ruling further protects property rights against popular pressures, and is the earliest case of the Court asserting its right to invalidate state laws conflicting with the Constitution.

During the Revolutionary War, Virginia passed legislation allowing it to take Loyalists' property. The United States signed the Treaty of Paris in 1783 with Britain; it included a clause that stated that the federal government would tell the states to give back the Loyalists' property. A Loyalist named Denny Martin sued in Virginia's state court system on the grounds that Loyalists were to get their properties back in accordance with the treaty.

The case eventually reached the Virginia Supreme Court, which upheld the confiscation on the grounds that the court's interpretation of the treaty was that it did not cover the case. The case was appealed to the Supreme Court, which decided that the treaty did apply to the case and remanded it back to the Virginia Supreme Court. The court decided that the Supreme Court did not have jurisdiction over cases originating in state courts, and the decision was appealed back to the Supreme Court. Once again, the Supreme Court overturned the Virginia Supreme Court's ruling, arguing that the case involved federal law. The Court's decision was very important because it affirmed that it had supreme power over all courts in regards to federal law and the Constitution.

McCulloch v. Maryland, 17 U.S. 316 (1819)


This case was a very important test of States' Rights against the power of the federal government. Many states continued to oppose the Bank of the United States after it was reinstated in 1816, mostly because it called for its loans to be owed by the states. In retaliation to this policy, Maryland passed a tax on the bank, which the bank refused to pay. Maryland soon filed suit against James McCulloch, the head of the Baltimore branch of the bank.

The Court's unanimous opinion established two extremely important principles. The first was that, yes, Congress could create the Bank under the doctrine of implied powers. The Constitution specifically lists that Congress has the power to borrow money and regulate commerce (among others), and it can be implied that Congress had the power to create the Bank. The second point that the Court made was that Maryland's tax was unconstitutional because it was in conflict with the Supremacy Clause, which says that states can never willingly impede the federal government. The court reasoned that taxing, if other states decided to adopt Maryland's policy, had the potential to destroy the bank, and thus impede the federal government's efforts to regulate the economy.

The Dartmouth College Case was a reiteration of the judicial principle of pacta sunt servanda ("contracts are to be held"). Dartmouth College was established per a colonial charter in 1769, by King George III. In 1815, the legislature of New Hampshire attempted to change the charter of the College in such a way that the governor would be able to appoint a new president of the College, as well as appoint new members of the Board of Trustees and to create a state board to supervise the school, effectively trying to change the college from private to public institution. The court ruled that the old charter was still valid per the Contract Clause of the Constitution (also cited in Fletcher v. Peck). Essentially, the ruling was that a charter was also a contract, and the state legislature had no right to convert the private institution to a public institution as long as the old charter was in power.

Gibbons v. Ogden, 22 U.S. 1 (1824)


In Gibbons v. Ogden, the Supreme Court held that the power to regulate interstate commerce was granted to Congress by the Commerce Clause of the Constitution. The case was argued by some of America's most admired and capable attorneys at the time. Exiled Irish patriot Thomas Addis Emmet and Thomas J. Oakley argued for Ogden, while William Wirt and Daniel Webster argued for Gibbons.

The Constitution In Crisis and Decision (1850-1871)


The Union; its fundamental nature and character; the nature and character of states, and sovereignty; the meaning of citizenship; the extraordinary powers of the President; the war powers; the customs, usages, rules, and articles of war; the Great Writ, and its application in times of crisis; the formal ratification of the principles of the Declaration of Independence, and the formal repudiation of the Calhounian counterrevolutionary ideology of oligarchic slave power despotic tyranny.

This section will depart from the normal style, as there are important changes that were made in the Constitution and Constitutional interpretation through means other than judicial interpretation, such as by means of amendment, or by right of the victor.

Dred Scott v. Sandford, 60 U.S. 393 (1857)


Dred Scott was perhaps the most controversial Supreme Court decision in all of U.S. history, quite possibly was a major cause of the U.S. Civil War, and is generally regarded by most U.S. historians, scholars, and lawyers as a moment of supreme infamy, when the U.S. unquestionably knew sin.

Dred Scott was an African-American slave who originally lived in Missouri, and was taken to Illinois, a free state, by his master. Scott sued for freedom, as he was in a free state. The case worked its way through the courts, until it reached the Supreme Court. Although the case could have been dismissed for technical reasons, Chief Justice Roger Taney decided to attempt to resolve the slavery issue in the United States once and for all, by imposing his personal opinion (his personal opinion as a slaver) upon his fellow citizens. Taney declared, simply, that African-Americans were not citizens within the meaning of the Constitution, and had no rights except for what "those who held the power...might choose to grant them", and thus, not being citizens, in Taney's opinion[1], had no standing to sue. He dismissed the case.

The most infamous passage of Scott is as follows:

"The words 'people of the United States' and 'citizens' are synonymous terms, and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the Government through their representatives. They are what we familiarly call the 'sovereign people,' and every citizen is one of this people, and a constituent member of this sovereignty. The question before us is, whether the class of persons described in the plea in abatement compose a portion of this people, and are constituent members of this sovereignty? We think they are not, and that they are not included, and were not intended to be included, under the word 'citizens' in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them."

It took a civil war and 700,000 dead U.S. citizens, both black and white, to obliterate the stain of Scott from the Constitution with the blood of patriots and tyrants, to end slavery once and for all, but it was done.


Merryman was not decided by the Supreme Court, but is included for purposes of clarity, as it involves the extraordinary powers of the Presidency.

The United States, as it was in 1860, was a vast, sparsely populated, primarily agricultural nation. She was not a Great Power, for the Great Powers of the day were European principalities, kingdoms, and empires who did the world's business at the Docklands of London, the harbors of Amsterdam, and the Palaces of Versailles, The Hague, and Vienna. She was a minor power who kept to herself and was looked upon by the philosophers and thinkers of the time as a minor experiment in popular rule which was not bearing major fruit; to the princes of Europe, the United States was a convenient place to exile their radicals to who were calling for elected governments or civil liberty. In the words of certain Europeans, the United States had "gone from barbarism to decadence without passing through civilization". Washington, D.C. was viewed as a semi-tropical backwater of minor import; for many European diplomats used to soirees in the imperial courts of France and Prussia, or grand balls in the Hall of Mirrors in Versailles, it was a post worthy of substantial hardship pay.

Many of the Far Western states (the Great Plains States and the Rocky Mountain States) were not States at that time, and those regions were mostly unsettled, with the land owned by the Government, but the Government unable to disburse of it at the time in a manner perceived as fair. The Pacific Coast States were settled, but only moderately, and had low levels of industry and moderate levels of agriculture prior to the construction of the Transcontinental Railroads (the completion dates of those being the Union Pacific in 1873; the Southern Pacific in 1882; and the Great Northern in 1891). In the Eastern States, the United States had a moderate population level in the Old Northwest, along with mining, industry, and agriculture; a comparatively high population level in the Mid-Atlantic and the Northeast, where the industry and trade of the nation was concentrated; and a moderate to high population level and large scale agriculture in the Old South. Transportation links in the North, which consisted of the Northeast, the Mid-Atlantic and the Old Northwest (what we now call the Upper Midwest - beyond the Appalachians to the Mississippi River) were rather developed, to meet the needs of commerce and industry, and the railroads provided transportation from one city to another in the North within the travel of 2-3 days. The South's rail systems were underdeveloped, and transit there was often an extended affair. To the Far Western states, transit would have to be either by steamer or overland; either mode of transit was not particularly fast. It could take a month - or more - for a person to get from one side of the United States to the other. Information did travel much faster than that - the Transcontinental Telegraph permitted the news of the East to reach the West within minutes, while the Pony Express served such purposes prior to that point, with round-trip mail times of days.

The reason for this being important to this case is that the Congress of the United States did not, like it does today, meet during all the year. The Congress was but a part-time legislature; the laws were few and simple, the business of the time was of import but not of great urgency, and following their session, the Congress dissolved and returned to the states and districts, the log cabins, the small farms, the cities, and the plantations from whence they came.

Following the election of the Northerner Abraham Lincoln as President, an insurrection had broke out in certain areas of the United States, as the slave-power of the South was desirous of subduing the anti-slavery North once and for all by fire and the sword, or at the very least, breaking free of the "oppressive" Federal rule so she could once again traffic in the human flesh of the African coast and build a slave empire extending even to Cuba and Mexico, as contemplated by the then dead John Calhoun, chief of the slave-power faction in the Congress at one time. This insurrection had turned into a rebellion, forming an alleged government; South Carolina, a hot-bed of slaving conspiracy where there were more African-Americans in bondage than there were people of any race, had seceded from the Union first, and was followed by the states of the Deep South where the Slave Power was the strongest. The less degenerate slave states of Virginia and Tennessee only saw treason openly fomented in their legislatures at first, and they did not break from the Union yet... Prior to attempts to peacefully settle the crisis, the South Carolinian fire-eaters fired the first shot of the coming war at Fort Sumter in Charleston Harbor, the property of the Federal Union, and with those shots, the war came, the War Between the States, The War of Southern Aggression, The War of Northern Aggression, or as it is known by later times, the U.S. Civil War.

Following the assault on Fort Sumter, the Upper South joined itself to the rebellion, and even Maryland, Kentucky, and Missouri, only lightly scarred by the lash of the slaver, were rumored to be beset by internal commotion by slavers and slave-power sympathizers who sought to secede from the Federal Union and deliver those states into the hands of the so-called Confederacy.

During the first six or seven months of 1861, the Congress was not assembled in Washington D.C., and it could not be returned into session, because its members were scattered around the nation, word of the emergency traveled slowly, and people traveled like molasses, if they traveled at all.

During the first year of the Civil War, President Abraham Lincoln

Compare and contrast with the more moderate opinion of the Court in Youngstown.

Ex parte Milligan, 71 U.S. 2 (1866)


Case involving Confederate sympathizers subjected to (sham) trial by "military commission" based on order of the so-called unitary executive. Supreme Court ruled that use military commissions or any form of attenuated due process had to be based on military necessity, and proximate in time and space to the actual zone of military operations.

Second Constitutional Era (1871-1938)


Substantive due process, "corporate personhood", "separate but equal", "freedom of contract", monopolies, corporations, the national and state level economies, private greed v. public need.

Slaughter-House Cases, 83 U.S. 36 (1873)


Civil Rights Cases, 109 U.S. 3 (1883)


Decision where the scope of the term "person" under the 14th Amendment and the Constitution of the United States was expanded to include legal fictions, such as corporations. This granted to corporations the same rights (such as freedom of speech, freedom of contract) that previously were retained only by human persons, under the Constitution, the Bill of Rights, and the 14th Amendment. Enormously controversial, as decision allowed corporations to claim the Constitution protected them from popular legislation such as minimum wage laws, health and safety standards, taxation, labor laws, etc. Set the defining theme of the Court's jurisprudence for the next 50 years, until Carolene Products in 1938.

In re Debs, 158 U.S. 564 (1895)


Plessy v. Ferguson, 163 U.S. 537 (1896)


The Plessy v. Ferguson decision upheld the constitutionality of racial segregation even in public accommodations (particularly railroads), under the doctrine of "separate but equal". This case remained the legal basis for Jim Crow segregation laws in the Southern states.

The decision was handed down by a vote of 7 to 1, with the majority opinion written by Justice Henry Billings Brown and the dissent written by Justice John Marshall Harlan. Justice David Josiah Brewer did not participate in the decision. "Separate but equal" remained standard doctrine in U.S. law until its repudiation in the 1954 Supreme Court decision Brown v. Board of Education.

After the high court ruled, the New Orleans Comité des Citoyens (Committee of Citizens) that had brought the suit and that had arranged for Homer Plessy's arrest in order to challenge Louisiana's segregation law, replied, "We, as freemen, still believe that we were right and our cause is sacred."

Insular Cases, (1901-1905)


The Insular Cases were a series of Supreme Court decisions concerning territories annexed by the United States during the 1898 Spanish-American War and further annexations. The most significant precedent established by these cases was that "the Constitution does not follow the flag." This means that the rights of American citizens as granted by the Constitution do not necessarily apply to "American" inhabitants of U.S. territories. These cases were known as Insular Cases because the territories annexed by the U.S. were islands, among them the Philippines, Hawaii, Puerto Rico, and Guam. These cases also established that the Constitution only applied to "fully incorporated territories," meaning that the territories had to be fully incorporated into the United States under the doctrine of territorial incorporation, also established during this time.

Lochner v. New York, 198 U.S. 45 (1905)


Schenck v. United States, 249 U.S. 47 (1919)


Schenck v. United States was a United States Supreme Court decision concerning the question of whether the defendant possessed a First Amendment right to free speech against the draft during World War I. Charles Schenck was the Secretary of the Socialist party and was responsible for printing, distributing, and mailing 15,000 leaflets to men eligible for the draft that advocated opposition to the draft. These leaflets contained statements such as; "Do not submit to intimidation", "Assert your rights", "If you do not assert and support your rights, you are helping to deny or disparage rights which it is the solemn duty of all citizens and residents of the United States to retain." Ultimately, the case served as the founding of the "clear and present danger" rule, first written in the majority opinion written by Chief Justice Oliver Wendell Holmes.

Third Constitutional Era (1938-?)


Civil rights, equality under the law, the right to privacy, "penumbras formed by emanations", the meaning of justice, the limits of the executive, the manifold possibilities of liberty.

Hague v. CIO, 307 U.S. 496 (1939)


First civil liberties case of the Third Era, involving freedom of assembly, association, and speech; specifically, related to the repression of labor unions by infamous Boss Hague in New Jersey.

Fred Korematsu, an American born in California who was subjected to Japanese Internment.

Korematsu v. United States was a decision related to internment of Japanese-Americans (including citizens of the United States) in prison camps during World War II. By Executive Order 9066, President Franklin Delano Roosevelt ordered all Japanese and Japanese American residents of certain parts close to the coast removed in 1942, following the Japanese attack on Pearl Harbor. This eventually led to the establishment of internment camps for around 120,000 ethnic Japanese, most of them citizens of the United States, in the military zones established by the executive order. In this decision, the Supreme Court upheld the constitutionality of the internment, voting by 6-5 that the requirement to protect the United States against espionage was more important than the rights of Japanese immigrants and citizens in the United States.

In 2018 the Supreme Court found that Korematsu v. United States was wrongly decided in the case Trump v. Hawaii.

During the Korean War, a labor dispute arose between the Steelworkers (an association of workers, called a labor union) and the various steel mills who employed them. The steel mills claimed that the workers in question were being paid too much, and, after difficult negotiations, decided to lockout these workers, so that they could avoid paying them. The workers were outraged that they were being locked out, due to the enormous unfulfilled needs of soldiers on the battlefield for tanks and weapons that couldn't be produced and were being ignored due to the position of the mill owners, and perhaps also due to the fact that they weren't able to work or get paid.

President Harry Truman decided to intervene, claiming that due to the fact that a war was going on, he, as "Commander in Chief", could temporarily seize and run the steel mills under the Federal Government so as to continue production during the war. This outraged both the steel mills and the workers; both sides didn't believe the government could do such a thing, as no law had been passed to allow those sorts of actions to take place; indeed, most people believed that unilateral actions like Truman's, in this case, were exactly the type of thing the Constitution was there to prevent.

The owners of the steel mills sued the government for seizing the steel mills. Within several weeks, due to the emergency nature of the situation, the case came before the Supreme Court.

The Court ruled against the Government, finding that there were no provisions in the law or the Constitution that allowed the government to seize private industry (or to force workers to work) during a labor dispute. Though the decision was mixed--almost every Justice wrote an opinion--it was definitively against the Government. Justice Harlan? wrote the most famous opinion in this case--delineating three spheres of Presidential power--that is considered to be the single most authoritative pronouncement of the Supreme Court on the scope of Presidential powers since the immediate aftermath of the Civil War; Harlan's? opinion still is considered authoritative to this day.

This case, although it might seem minor to the reader, has great meta-Constitutional importance--Presidential powers have greatly expanded since the Framing of the Constitution--and their exact scope is extremely controversial, especially in the past 30-40 years.

The mills were returned to their owners, who (very quickly) reached agreement with the workers, and the dispute was resolved.

VERY IMPORTANT Supreme Court case which decided that racial segregation in public schools was contrary to the letter and the spirit of the Constitution; one factor that set in motion the civil rights movement amongst African-Americans. Brown v. Board of Education of Topeka, 347 U.S. 483 (1954),[1] was a landmark decision of the United States Supreme Court, which overturned earlier rulings going back to Plessy v. Ferguson in 1896, by declaring that state laws that established separate public schools for black and white students denied black children equal educational opportunities. Handed down on May 17, 1954, the Warren Court's unanimous (9-0) decision stated that "separate educational facilities are inherently unequal." As a result, de jure racial segregation was ruled a violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. This victory paved the way for integration and the civil rights movement.[2] Contents [hide]

Mapp v. Ohio, 367 U.S. 643 (1961)


The Exclusionary Rule protects defendants in criminal cases from having unlawfully obtained evidence used against them in court, such as stolen items found during a search of a residence by police without a warrant. For many years, the Exclusionary Rule only was applied at the federal level. Federal criminal prosecutions are an extremely tiny minority of all criminal prosecutions in the United States; most prosecutions occur at the state level, including nearly all of those for extraordinarily serious crimes, such as murder and rape. (Federal crimes include offenses against federal property and agents; certain crimes taking place in multiple states, such as a spree of bank robberies; interstate conspiracies, such as a drug-smuggling ring; crimes taking place under color of law, such as police brutality or judicial corruption; and also include acts of terrorism, military crimes, espionage, and treason. The states are responsible for the prosecution of all other criminal acts, from drunken disorderliness all the way to premeditated murder.)

In Mapp, the Supreme Court found that the Exclusionary Rule applied to the states, and that evidence unlawfully obtained could not be used for state prosecutions, in addition to federal ones. The grounds for this were found in the Fourteenth Amendment, which required that states not deprive any person of life, liberty, or property without due process of law; liberty was held to include those rights protected by the Bill of Rights, which had previously only applied to acts of the Federal Government.

Mapp forced wholesale changes in police procedure throughout the United States, as police were now required to obtain warrants to gather evidence that could be used in court. (Previously, police were supposed to obtain warrants to search homes, but as the evidence gained by warrantless (i.e. unlawful) searches was admitted regardless of whether it was obtained by warrant or not, this rule was widely ignored.) In addition, Mapp signaled an increased level of scrutiny by the Supreme Court over police practices, which has continued to the present day.

Gideon v. Wainwright, 372 U.S. 335 (1963)


Case that decided that accused persons had right to a lawyer even if they could not afford one.

Escobedo v. Illinois, 378 U.S. 478 (1964)


Griswold v. Connecticut, 381 U.S. 479 (1965)


This Supreme Court case was brought by a married couple who claimed that their fundamental liberties were infringed by a Connecticut statute that outlawed the sale of birth control devices and medicines within the state. The Supreme Court agreed, finding that their Constitutional right to privacy was infringed by the Connecticut birth control ban, and invalidated it for married couples.

Justice Douglass famously wrote that the right to privacy, a right not explicitly written into the text of the Constitution, was instead implied by "penumbras formed by emanations" by the other enumerated rights reserved to the people and listed in the Constitution, such as the right to be free from unreasonable searches without a warrant. Especially after Roe v. Wade, some conservatives have used the "penumbra" passage to decry what they believe to be the alleged judicial "creation" of rights not found in the Constitution.

Though this case was relatively uncontroversial when it was decided, as it only impacted married couples, it laid the foundation for the Court's decision 8 years later in Roe v. Wade, where the Court overturned all laws banning abortion in the US as violations of the right to privacy, which is perhaps one of the most controversial Supreme Court decisions ever.

Miranda v. Arizona, 384 U.S. 436 (1966)


Case requiring that the famous Miranda warnings, advising arrested persons of their right to remain silent, to have a lawyer present, and to have a lawyer appointed for free, in the event of lack of money, be given to persons arrested by police prior to interrogation.

Brandenburg v. Ohio, 395 U.S. 444 (1969)


Free speech case. Changed what remained of old "clear and present danger" test to "incitement to imminent lawless action test". Important in understanding U.S. free speech jurisprudence.

Roe v. Wade, 410 U.S. 113 (1973)


Roe v. Wade, decided in 1973, is a famous and extraordinarily controversial Supreme Court case that found the Constitution of the United States prohibits outlawing of abortion, or the imposition of undue restrictions upon it, at least during the initial stages of a pregnancy. Roe is likely the most controversial Supreme Court case in 20th century U.S. history, and ranks among Bush v. Gore (2000), Santa Clara County v. Southern Pacific Railroad Company (1886), and Dred Scott v. Sanford (1857), as one of the most controversial Supreme Court cases of all time. On June 24th, 2022 the decision was overturned by the Supreme Court in the decision of Dobbs v. Jackson Women's Health Organization.

Roe, a woman from the state of Texas, had an unwanted pregnancy. Texas law, at that time, forbade the termination of pregnancy except under certain medical circumstances, such as the endangerment of the pregnant woman's life. Roe sued the state of Texas, alleging that her 14th Amendment right to privacy was being violated by the law forbidding termination of pregnancy. The case worked its way up through the several Federal courts, and reached the Supreme Court. The Supreme Court agreed with Roe, and found the Texas law to be an unconstitutional invasion of Roe's right to privacy between doctor and patient. The decision in Roe was unique, though, as the Court did not just strike down the Texas law; it issued guidelines as to what regulation of abortion it would consider permissible. (It is normally very unusual for the Court to say what is allowed to government, versus determining what is forbidden for government to do.) The Court decided that during the first 3 months of a pregnancy, abortion was acceptable for any reason; during the second 3 months, regulation to protect health could be imposed, such as requiring that abortions take place in hospitals; and during the last 3 months, abortion could be generally forbidden, due to the late stage and development of the pregnancy.

This decision caused immediate and immense controversy throughout the United States. Persons of numerous faiths objected to it (especially Catholics and conservative Protestants); feminist & civil rights groups applauded it; liberal groups (the left of the American political spectrum) were generally viewed as supportive of Roe, while conservative groups (the right of the American political spectrum) were generally viewed as being opposed to the decision.

Support & Opposition to Roe


Political and religious stereotypes scarcely capture the immense political and legal debate about the implications of Roe. This section reviews a few of these arguments.

Supporters of Roe view Roe as an important decision that affirmed what they consider the basic rights of women, especially the right for women to control their own body and reproductive systems. Other supporters view Roe as an important triumph in the area of reproductive public policy, establishing the right to control over active pregnancy into the law of the land. Still others focus on sociological arguments, sometimes claiming that Roe led to decreases in crime in the years since the decision, as unwanted pregnancies, and therefore the number of unsupportable children was reduced by the availability of abortion. (Others claim that the decrease in unwanted children is due to effective contraception widely available upon request, and the rise of comprehensive sex education.) Still others claim that it is hypocrisy for people to object to Roe, especially men, who will never have the "opportunity" to walk a mile in the shoes of a teenage woman with an unwanted pregnancy, which will severely impact her future choices as well as cause her and her family shame. This view can be expressed by the slogan: "Don't like abortion? Get a vasectomy!"

Objections to Roe are numerous. Legal objections can be broken down into several arguments. One is that the Supreme Court, rather than interpreting the Constitution, legislated from the bench, in either upholding or greatly expanding the scope of the unwritten privacy right into an area which is generally not considered a subject of privacy, namely the permissibility of medical procedures performed by state-licensed health-care professionals. Individuals subscribing to this argument may take the view that irregardless of whether abortion is good public policy or not, it is not a legal matter implicating fundamental liberties, due to the uncertain origin and tortured nature of the privacy argument, but a political matter, for the people's representatives to consider and decide upon. Another is that the Supreme Court failed to consider the possibility that fetuses (or, as some term them, babies), may have rights as well as the pregnant woman, and those potential rights have to be analyzed as part of any decisions surrounding abortion. Others focus on the implications of decisions of this nature, viewing them as overreaching, and setting dangerous precedents that allow the Court to deeply intrude into political questions that go further than fundamental liberties (like freedom of speech, or the right to a fair trial), such as the Court was viewed by many as doing in Bush v. Gore.

Other objections include those of morality and religion. These objections are often raised by conservative Protestants, as well as Catholics, in general. However, a number of liberal Protestant and Catholics, as well as non-religious people also object to abortion, as what they view as a violation of human rights.

Impact and Implications of Roe


It can be scarcely disputed that Roe has caused immeasurable political conflict between supporters and opponents of abortion that goes on to this day; some even believe that Roe and the conflicts surrounding it have caused the basic consensus underlying the foundations of United States democracy to be injured. It is arguable that Roe was the last blow that shattered the New Deal Coalition of liberals and moderates that had governed the U.S. for perhaps 40 years at the time. Objectors to Roe no longer saw the general political community of the United States as sharing their values, and opted out of that community, seeking and creating new political communities within and based upon their faith. These faith-based political communities would later do battle with the ideology-based political communities created during and in the wake of the Vietnam War, and forged in place by the great unrest of 1968.

This clash of beliefs came to be characterised by conservatives as a 'Culture War' which became an evocative touchstone of their political activism from the 1980s onwards.

United States v. Nixon, 418 U.S. 683 (1974)


This case originated out of a dispute over a subpoena for evidence pertinent to special prosecutor Archibald Cox's Watergate investigation. Because of Cox's insistence that President Nixon hand over his infamous audiotaped conversations, he was fired as a part of Nixon's Saturday Night Massacre. Cox's successor, Leon Jaworski, continued to pursue the subpoena. Nixon continued to refuse to hand the tapes over, and cited his executive privilege in asserting their confidentiality. Jaworski filed a lawsuit in the Supreme Court in hopes of obtaining a court order forcing Nixon to obey the subpoena.

Although in private deliberations, the justices did not come to a unanimous opinion, they decided to rule unanimously with the majority's opinion in order to make the ruling more definitive to Nixon and pressure him not to ignore it. The opinion held that, not only as established in Marbury v. Madison that the Court was the final say concerning whether or not laws were constitutional, the Court could also decide how the President's powers are limited by the Constitution. The court also held that executive privilege did not apply to evidence pertinent to criminal cases. Most importantly, the Court ruled that, using the power it had affirmed, that nobody, including the President of the United States, was above the law.

Supreme Court case that ruled that quotas as a form of affirmative action (i.e. a guaranteed minimum percentage reservation of seats in a public institution for minority groups who were subject to past discrimination) were violative of the Constitution, and were thus illegal.

Bowers v. Hardwick, 478 U.S. 186 (1986)


Supreme Court case that found that laws forbidding and criminalizing private, consensual, non-commercial sexual conduct between unrelated adults that a legislative body found to be immoral were compatible with the Constitutional guarantees of liberty and privacy. Overruled and reversed as being wrongly decided in the first instance by Lawrence v. Texas (2003).

Texas v. Johnson, 491 U.S. 397 (1989)


Romer v. Evans, 517 U.S. 620 (1996)


Bush v. Gore, 531 U.S. 98 (2000)


This case is notable, not because it set any new precedent, but because of the magnitude of the decision: the Supreme Court effectively decided the 2000 Presidential election, due to voting irregularities in Florida.

Lawrence v. Texas, 539 U.S. 558 (2003)


Lawrence, a gay man, was in his apartment, having consensual intimate transactions with his unrelated sexual partner, when local police, responding to a weapons complaint of shots fired, suddenly entered his apartment to search for weapons. No weapons were found, but Lawrence and his partner were discovered by the police in flagrante delicto. They were cited by the police for "unnatural sexual intercourse", a crime under the law of the State of Texas.

Lawrence and his partner, Gardner, decided to fight the charges, on the grounds that:

  1. The law only applied to "unnatural sexual intercourse" between persons of the same sex, but not against persons of the opposite sex engaging in the same sort of "unnatural sexual intercourse". This, claimed Lawrence, deprived him of the equal protection of the law.
  2. The law was an unconstitutional invasion of Lawrence's and Gardner's privacy and liberty, as the "crime" Lawrence and Gardner were accused of were transactions of the most intimate character, were consensual, were non-commercial and took place in private, behind closed doors, in a private space where the authority of the state had no power to enter, nor to regulate such transactions, absent some compelling showing of harm.

The State of Texas argued that the charges should be upheld on the grounds that the state has the right to determine and regulate morality, including morality in private spaces, and that laws forbidding homosexuality were found to be constitutional in the case of Bowers v. Hardwick, creating a precedent that had to be upheld by the Court.

The Court agreed with Lawrence and Gardner. Justice Kennedy, writing for the Court, concluded:

“These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do. The decision in Bowers would deny them this right. Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.

The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. “It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.” Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.

Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom."

Hamdi v. Rumsfeld, 542 U.S. 507 (2004)


Hamdan v. Rumsfeld, 548 U.S. 557 (2006)


Boumediene v. Bush, 553 U.S. 723 (2008)


This case involved the interpretation of the Second Amendment, appertaining to militias as well as the right to keep and bear arms, as well as the Fourteenth Amendment, which secures and specifies that the people retain certain rights, including those to life, to liberty, and to property, that no state government may deny them.

Heller, the petitioner, lived in the District of Columbia, whose law forbade the possession of handguns within said District, except under certain very narrow circumstances, which Heller was not eligible for. Believing the Second Amendment to apply to individuals, Heller sued, claiming that his right to keep and bear arms was being infringed by the District.

The Supreme Court agreed with Heller, finding that the Second Amendment does indeed secure to individuals the right to keep and bear arms, and that the Fourteenth Amendment applies this right to the several States; the District's handgun ban was thus overturned.

References and Notes

  1. Taney's personal view on the potential citizenship of free African-Americans was markedly inconsistent with the expressed opinion of the Framers of the Constitution. During the time when the Framers yet lived, there existed a question as to whether the territory of Missouri was to be admitted into the Union. As is written in Elson, Henry Wm. History of the United States of America (1905), p. 460-461: "When the people of Missouri adopted a constitution, they inserted a clause making it the duty of the legislature to exclude free Negroes and mulattoes from the commonwealth. This brought on another great debate in Congress. The objection to this clause was based on the ground that the Constitution guarantees to the citizens of any state all the privileges and immunities of the citizens of the several states. The two houses again failed to agree, and again the decision was made through a joint committee. Henry Clay was the mover and the chairman of this committee, and from this fact he became known as the author of the Missouri Compromise... This committee reported a bill to admit Missouri on an equal footing with the original states, on the condition that its constitution should never be construed so as to authorize any law by which a citizen of any other state should be excluded from the privileges which he enjoyed in other parts of the Union; and that the legislature of Missouri should pass a solemn act declaring its consent to this condition." This suggests that the Missouri Compromise - made while Adams, Madison, and Jefferson still lived - very strongly implied that free African Americans were, in fact, citizens of the United States. (However, the 14th Amendment (in theory), the Civil War, and the later Civil Rights Movement (in fact), settled the question, for all time.)

Presidents · Chief Justices