Table of Contents Clashing Views in Constitutional Law,First Edition Unit 1 Judicial Authority and the Separation of Powers - Issue 1. Is Judicial Review a Legitimate Power of U.S. Courts?
YES: John Marshall, from Marbury v. Madison, 5 U.S. 137 (1803). NO: John B. Gibson, from Eakin v. Raub, 12 Sergeant and Rawle 330 (1825). Chief Justice John Marshall asserts that judicial review is a legitimate and indispensable power of the courts in the U.S. Constitutional system. Pennsylvania Supreme Court Justice John Gibson, argues, in response to Marshall, that the U.S. Constitution itself provides no textual basis for the power of judicial review. - Issue 2. Do U.S. Supreme Court Decisions Become the Supreme Law of the Land and Binding Precedents for Future Cases?
YES: Earl Warren, writing for a unanimous U.S. Supreme Court in Cooper v. Aaron, 358 U.S. 1 (1958). NO: Edwin Meese III, from “The Law of the Constitution: A Bicentennial Lecture.” A paper presented at the Citizens Forum on the Bicentennial of the Constitution (New Orleans, LA, October 21, 1986) Chief Justice Earl Warren asserts that the interpretation of the Constitution set forth in a particular decision is the supreme law of the land and it is binding on the states. Former U.S. Attorney General Edwin Meese III argues that a decision by the Supreme Court does not establish a supreme law of the land that is binding on all persons and parts of the government. - Issue 3. Does the U.S. Supreme Court have the Power to Determine the Constitutionality of Presidential Actions during Wartime?
YES: Hugo L. Black , writing for the U.S. Supreme Court in Youngstown Sheet and Tube Co., v. Sawyer, 343 U.S. 579 (1942). NO: Fred M. Vinson, Dissenting Opinion, in Youngstown Sheet and Tube Co., v. Sawyer, 343 U.S. 579 (1942). Justice Hugo Black, in Youngstown Sheet and Tube Co., held that President Trumans order seizing the nations steel mills during the Korean War infringed upon the lawmaking powers of Congress and was not justified by his role as “commander in Chief” of the armed forces. Justice Fred Vinsons Dissenting Opinion asserted that President Trumans seizure of the steel mills was proper because it was a temporary measure, justified by the emergency nature of the situation and as an effort to preserve the status quo until Congress could act. - Issue 4. Do Non-Citizens Accused of Terrorism Have the Right to a Writ of Habeas Corpus in U.S. Courts?
YES: Anthony M. Kennedy, writing for the Supreme Court in Boumediene v. Bush, 553 U.S. (2008). NO: Antonin E. Scalia, Dissenting, in Boumediene v. Bush, 554 U.S. (2008). Justice Anthony Kennedy in Boumediene v. Bush (2008), asserted that the Constitutional right to a writ of habeas corpus applies to all accused terrorists, including those designated as enemy combatants. Justice Antonin Scalia, dissenting, asserted that the Constitution does not ensure habeas corpus for aliens held by the United States in areas over which our Government is not sovereign. Unit 2 State and Federal Relations in the U.S. Constitutional System - Issue 5. Is Congress Given a Broad Grant of Implied Powers by the Constitution?
YES: John Marshall, writing for the Supreme Court in McCulloch v. Maryland, 17 U.S. 316 (1819). NO: Thomas Jefferson, “Opinion on the Constitutionality of the Bill for Establishing a National Bank,” in Julian P. Boye (ed.), The Papers of Thomas Jefferson, 31 vols. V. 19, 275-280. Chief Justice John Marshall asserted that Congressional powers may be implied in the Constitution, if they are “necessary and proper” for carrying out an express power, such as establishing a national bank in order to raise revenue; in addition, a state may not tax such an entity because “the power to tax is the power to destroy.” Thomas Jefferson, widely recognized as one of the most influential U.S. “founding fathers,” asserts that the powers of Congress should be limited and not include the authority to establish a national bank. The authority to incorporate a bank is not included in the Constitution as an enumerated power of Congress. - Issue 6. Should Congress have Broad Constitutional Power to Regulate the States Under the Interstate Commerce Clause?
YES: Robert H. Jackson, writing for the U.S. Supreme Court in Wickard v. Filburn, 317 U.S. 111 (1942). NO: William H. Rehnquist, writing for the U.S. Supreme Court, in U.S. v. Lopez, 541 U.S. 549 (1995). Justice Robert Jackson, writing for the Supreme Court in the aftermath of the New Deal, asserted that the “power of Congress over interstate commerce is plenary and complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution. Moreover “no form of state activity can constitutionally thwart the regulatory power granted by the commerce clause to Congress. Chief Justice William Rehnquist, writing for the Supreme Court in 2000, asserted that Congressional power to pass laws under the Commerce Clause is limited to cases that demonstrate a direct link to “instrumentalities, channels, or goods involved in interstate commerce.” Thus, the passage of laws designed to regulate the possession of guns in school zones should be left to the discretion of the states. - Issue 7. Should the Bill of Rights be Fully Binding on State Proceedings?
YES: Hugo L. Black, Dissenting Opinion in Adamson v. California, 322 U.S. 46 (1947). NO: Benjamin N. Cardozo, writing for the Court in Palko v. Connecticut, 302 U.S. 319 (1937). Justice Hugo Black, Dissenting in Adamson v. California (1947), asserted that the Supreme Courts “selective incorporation” approach to the Constitutional protections in the Bill of Rights “degrades” those safeguards. Justice Benjamin Cardozo, in contrast, asserts that only those Bill of Rights protections that are “implicit in a concept of ordered liberty,” are binding on state proceedings through the Due Process Clause of the Fourteenth Amendment. - Issue 8. Should the States be Permitted to Abolish the Exclusionary Rule of Evidence in Criminal Cases?
YES: Akhil Reed Amar, from “Against Exclusion (Except to Protect Truth or Prevent Privacy Violaltions),” Harvard Journal of Law and Public Policy (Winter 1997). NO: Yale Kamisar, from “In Defense of the Search and Seizure Exclusionary Rule,” Harvard Journal of Law and Public Policy (Winter 2003). Law professor Akhil Reed Amar argues that if reliable evidence is excluded from trials, wrongful acquittals and erroneous convictions will result. Professor Yale Kamisar contends, in contrast, that the exclusionary rule is the sole effective remedy to secure compliance with the Constitution by the police. Unit 3 Privacy and Civil Liberties - Issue 9. Does the Bill of Rights to the U.S. Constitution Guarantee a Right to Privacy?
YES: William O. Douglas, writing for the U.S. Supreme Court in Griswold v. Connecticut, 381 U.S. 479 (1965). NO: Hugo L. Black, Dissenting in Griswold v. Connecticut, 381 U.S. 479 (1965). Justice William Douglas asserted that the Constitution has rights that emanate from certain Amendments that form a “penumbra,” which provides a right to privacy protected from governmental interference. Justice Hugo Black, in contrast, asserted that a Constitutional right to privacy is not found in any explicit provision in the Bill of Rights. Therefore, he would vote to uphold the Connecticut law prohibiting contraceptives. - Issue 10. Does a Constitutional Right to Privacy Protect a Womans Right to Obtain a Lawful Abortion?
YES: Harry A. Blackmun, writing for the U.S. Supreme Court in Roe v. Wade, 410 U.S. 113 (1973). NO: William H. Rehnquist, Dissenting Opinion in Roe v. Wade, 410 U.S. 113 (1973). Justice Harry Blackmun, in Roe v. Wade (1973), asserted that the Constitutional right to privacy, established in Griswold v. Connecticut (1965), is sufficiently broad to protect a womans right to terminate her pregnancy. Justice William Rehnquist, Dissenting, asserted that although privacy may be a form of liberty protected by the Fourteenth Amendment, such an interest is protected only against state actions without due process of law. - Issue 11. Does a Constitutional Right to Privacy Protect the Rights of Homosexual Couples to Engage in Intimate Personal Relationships?
YES: Anthony M. Kennedy, writing for the U.S. Supreme Court in Lawrence v. Texas, 539 U.S. 558 (2003). NO: Antonin E. Scalia, Dissenting Opinion in Lawrence v. Texas, 539 U.S. 558 (2003). Justice Anthony Kennedy held that a Texas law making it a crime for two persons of the same sex to engage in intimate personal relationships. Justice Antonin Scalia, in contrast, does not believe that the Texas law infringed a fundamental right. It also has a rational relationship to a legitimate state interest and does not deny the equal protection of the laws. - Issue 12. Does the Constitution Protect the Right to Possess a Firearm Unconnected With Service in a Militia?
YES: Antonin E. Scalia, writing for the U.S. Supreme Court in District of Columbia v. Heller, 554 U.S. (2008). NO: John Paul Stevens, Dissenting in District of Columbia v. Heller, 554 U.S. (2008). Justice Antonin Scalia held that a District of Columbia law making it a crime to carry an unregistered handgun and prohibiting the registration of handguns, but that authorizes the police chief to issue one-year licenses, and requires residents to keep lawfully owned handguns unloaded and dissembled or bound by a trigger lock violates the Second Amendment. Justice John Paul Stevens argued that neither the text of the Second Amendment nor the arguments advanced by its proponents evidenced the slightest interest by the Founders in limiting any legislatures authority to regulate private civilian uses of firearms. - Issue 13. Does Confining Sex Offenders Indefinitely in Mental Hospitals After They Have Served Their Prison Sentences Violate the Constitution?
YES: Stephen Breyer, from his Dissenting Opinion in Kansas v. Hendricks, 521 U.S. 346 (1997). NO: Clarence Thomas, writing for the Supreme Court in Kansas v. Hendricks, 521 U.S. 346 (1997). Associate Justice Stephen Breyer asserts that if a states law attempts to inflict additional punishment on an offender after he has served a prison sentence, it will violate the U.S. Constitution. Justice Clarence Thomas, in contrast, contends that post-imprisonment civil confinement laws do not violate the Constitution. - Issue 14. Is the Death Penalty an Unconstitutional Punishment for Juvenile Offenders?
YES: Yes. Anthony Kennedy, writing for the Supreme Court in Roper v. Simmons, 543 U.S. 551 (2005). NO: No. Antonin Scalia, Dissenting Opinion, in Roper v. Simmons, 543 U.S. 551 (2005). Justice Anthony Kennedy asserts that the death penalty is an unacceptable punishment for juveniles who commit murder because it constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. Justice Antonin Scalia argues that there is no clear social consensus that would favor abolishing the death penalty in these cases and that in doing so the Courts majority is usurping the power of state legislatures. Unit 4 Equal Protection of Law - Issue 15. Does the U.S. Constitution Require that Public Institutions and Facilities be Racially Integrated?
YES: Earl Warren, writing for the U.S. Supreme Court in Brown v. Board of Education of Topeka, Kansas, 347 U.S. 483 (1954). NO: Henry B. Brown, writing for the U.S. Supreme Court in Plessy v. Ferguson, 163 U.S. 537 (1896). Chief Justice Earl Warren held that state laws that segregate white and black children solely on the basis of race denies to African-American children their Fourteenth Amendment right to the Equal Protection of Law. Warren also expressly rejected the “separate but equal” doctrine developed in Plessy v. Ferguson (1896). In contrast, Justice Henry Brown, writing for the Court in Plessy, held that Louisianas law providing for “separate but equal” accommodations for person of different races on passenger trains does not violate the Thirteenth or Fourteenth Amendments to the U.S. Constitution. - Issue 16. Are “Affirmative Action” Admissions Policies at Public Universities Permitted by the Constitution?
YES: Sandra D. OConnor, writing for the Supreme Court in Grutter v. Bollinger, 539 U.S. 306 (2003). NO: William H. Rehnquist, Dissenting Opinion in Grutter v. Bollinger, 539 U.S. 306 (2003). Justice Sandra OConnor asserts that a state law schools narrowly tailored use of race in admissions decisions to further a compelling state interest in obtaining the educational benefits that flow from a diverse student body is not prohibited by the Equal Protection Clause of the Fourteenth Amendment. Chief Justice William Rehnquist, in contrast, asserts that when it comes to the use of race, the connection between a state interest and the means used to attain it must be precise. In Grutter, it is not; therefore the use of race as an admission criterion violates the Equal Protection Clause. - Issue 17. Does the Fourteenth Amendment Require the States to Use a “One Person, One Vote” Standard for Apportioning Legislative Districts?
YES: Earl H. Warren, writing for the Court in Reynolds v. Sims, 377 U.S. 533 (1963). NO: John M. Harlan, Dissenting Opinion, in Reynolds v. Sims, 377 U.S. 533 (1963). Chief Justice Earl Warren held that both houses of a states legislature must be apportioned on an equal population basis. The Equal Protection Clause requires an honest and good-faith effort by the states to do so. Justice John Harlan, in contrast, believes that Reynolds v. Sims, which involved congressional districting by the States, has the effect of placing basic aspects of state political systems under “the pervasive overlordship of the federal judiciary.” Unit 5 Religious Liberty, Free Speech, and Association - Issue 18. Does a State Law that Requires Public School Teachers to Teach “Creation Science” Whenever They Teach the Theory of Evolution Violate the First Amendment?
YES: William J. Brennan, writing for the Court in Edwards v. Aguillard, 482 U.S. 578 (1987). NO: Antonin E. Scalia, Dissenting Opinion, in Edwards v. Aguillard, 482 U.S. 578 (1987). Justice William Brennan held that the Louisiana law that required public school teachers to teach “creation science” whenever they taught the theory of evolution was a violation of the First Amendments Establishment Clause because the law lacked a clear secular purpose. Justice Antonin Scalia disagrees and asserts that the Louisiana law had a valid secular purposeprotecting academic freedom and that the law should be upheld. - Issue 19. Should Burning an American Flag be a Form of Symbolic Expression Protected by the First Amendment?
YES: William J. Brennan, writing for the Court in Texas v. Johnson, 491 U.S. 397 (1989). NO: William H. Rehnquist, Dissenting Opinion, in Texas v. Johnson, 491 U.S. 397 (1989). Justice William Brennan held that the defendants act of burning an American flag at the Republican national convention was expressive conduct, protected by the First Amendment. Chief Justice William Rehnquist, in contrast, asserted that because the American flag occupies a unique position as the symbol of our Nation, the State of Texas is justified in prohibiting flag burning in this case. - Issue 20. Does the First Amendment Permit the Government to Censure the Media?
YES: Pierce Butler, Dissenting Opinion in Near v. Minnesota, 283 U.S. 697 (1931). NO: Charles E. Hughes, writing for the Court in Near v. Minnesota, 283 U.S. 697 (1931). Justice Pierce Butler asserted that the Courts decision to prevent states from stopping the publication of malicious, scandalous and defamatory periodicals give to freedom of the press a meaning and a scope not previously recognized and construes “liberty” in the due process clause of the Fourteenth Amendment to restrict the States in a way that is unprecedented. Chief Justice Charles Evan Hughes, writing for the Court, held that the Minnesota law, which allowed the newspaper to be shut down, was the essence of censorship and a violation of the First Amendment. |