The 1787 Project

In our final episode for the course, we conclude our section on Equal Protection by considering ongoing legal and political debates about the meaning "sex" in federal anti-discrimination statutes including the Civil Rights Act of 1964.

This episode explores how the Supreme Court has addressed sex-based discrimination claims in Equal Protection analysis.

This episode gives a brief overview of the 2003 cases of Gratz v. Bollinger and Grutter v. Bollinger, the first major Supreme Court cases about the use of race in university admissions since the 1968 Bakke case.

This episode takes a close look at the case of University of California v. Bakke (1978), which sets the general analytic framework for the Supreme Court's subsequent series of cases on the use of race as a factor in university admissions decisions.

In the Civil Rights Act of 1875, Congress sought to prevent discrimination in public accommodations on the basis of race, but the Supreme Court declared that to be beyond the scope of Congress' power under Section V of the Fourteenth Amendment.

Turning now to the Equal Protection Clause, we consider in this episode the background that lead to the case of Plessy v. Ferguson (1896) and the way the Supreme Court addressed that precedent in Brown v. Board of Education (1954).

In this episode, we go back to the case of Burwell v. Hobby Lobby in 2014 to consider the structure of some of the arguments about the application of the Religious Freedom Restoration Act in specific cases.

This episode gives an overview of the back-and-forth between the Supreme Court and Congress over the issue of religious free exercise that led to the passage of the Religious Freedom Restoration Act (RFRA) in 1993 and the Supreme Court's limiting of the application of RFRA only to federal law in the case of City of Boerne v. Flores (1997).

In this conversation with Notre Dame Professor Phillip Munoz, we talk about the Free Exercise Clause and the contested place of religious exemptions in U.S. constitutional law and politics.

This episode explores several early cases about the Free Exercise Clause and the question of whether the First Amendment requires religious exemptions to otherwise valid laws. After considering the issue of polygamy in the federal territories in the nineteenth century, we then look at the important case of Sherbert v. Verner (1963) and preview our discussion, in the next episode, about the Supreme Court's move away from the reasoning in Sherbert in the 1990s.

This case explores the rise and fall of the so-called Lemon Test from the case of Lemon v. Kurtzman (1971). The Lemon Test was an important part of the Supreme Court's approach to the Establishment Clause for the last half century, but the recent case of American Legion v. American Humanist Association (2019) eschewed reliance on the Lemon Test and cast doubt on its continued relevance.

The First Amendment says that Congress shall make no law respecting an establishment of religion. What does that mean? This episode give a brief historical overview before looking at some of the landmark mid-century cases about religion in public schools as an entry point into the Supreme Court's modern Establish Clause jurisprudence .

Rounding out our discussion of the freedom of speech, this episode offers a brief recap and a rundown of the Supreme Court's First Amendment speech jurisprudence with a particular focus on the "bedrock principle" of content-neutrality in some of the recent decisions by the Roberts Court.

Through an analysis of Texas v. Johnson (1989) and R.A.V. v. City of St. Paul (1992), we explore the Supreme Court's insistence that the "bedrock principle underlying the First Amendment" is that "the government may not prohibit the expression of an idea simply because society finds the idea offensive or disagreeable."

Does the First Amendment shield you from liability in state defamation cases for publishing false statements about someone else? Not entirely, but the Supreme Court's decision in the case of New York Times v. Sullivan (1964) makes it very difficult for a public figure to win a libel case. In a similar way, the case of Snyder v. Phelps (2011) makes it difficult to successfully prove the intentional infliction of emotional distress when someone is speaking in a public forum about matters of public concern.

This episode focuses on three foundational cases dealing with categories of disfavored speech and government suppression of speech: Chaplinsky v. New Hampshire (1942), Cohen v. California (1971), and United States v. O'Brien (1968).

In this episode we look at how the Supreme Court extended and modified the "clear and present danger" test from Schenck in the subsequent cases of Dennis v. United States (1951) and Brandenburg v. Ohio (1969). In Brandenburg, the Court says that the Constitution protects speech that advocates lawlessness or political violence unless that advocacy "is directed and is likely to incite or produce such action."

Charles Schenck wrote a pamphlet arguing that the military draft was immoral and unconstitutional. For that he was sentenced to six months in prison under the Espionage Act of 1917. In the case of Schenck v. United States (1919), a unanimous Supreme Court upheld the act against Schenck's First Amendment challenge and introduced the "clear and present danger" test into the Court's free speech jurisprudence.

This episode explores limits on the Supreme Court's substantive due process jurisprudence based on its emphasis on fundamental liberties deeply rooted in American history and its emphasis on the Fourteenth Amendment's limitations on state (rather than private) actions.

In a series of cases beginning with Lawrence v. Texas (2003) and ending with Obergefell v. Hodges (2015), the Supreme Court appealed back to the conception of liberty from Planned Parenthood v. Casey (1992) to bolster a Fourteenth Amendment right to marry that includes the right to marry someone of the same sex.

In oral arguments for Griswold v. Connecticut (1965), Justice Black asked Griswold's counsel whether the right to privacy protecting contraception would also protect a right to abortion. At that point, the question was merely hypothetical, but the Supreme Court did take the opportunity to address that question directly in Roe v. Wade (1973), and we have been divided about it ever since.

The case of West Coast Hotel v. Parrish (1937) marked the Supreme Court's move away from economic substantive due process, but that wasn't the end of substantive due process as a doctrine. Although the Supreme Court became deferential to legislative judgments on economic or commercial regulations, it continued to scrutinize other substantive deprivations of liberty under the Fourteenth Amendment's Due Process Clause. An important example of the latter kind of substantive due process came in Griswold v. Connecticut (1965), a case about a long-standing legal prohibition of contraception.

The case of Lochner v. New York (1905) is remembered as a paradigmatic example of economic substantive due process, where the Supreme Court asks whether state economic regulations are unreasonable deprivations of liberty or property in violation of the Fourteenth Amendment's Due Process Clause. With the case of West Coast Hotel v. Parrish (1937), the Supreme Court had turned away from this approach to Due Process and signaled its future deference to legislative majorities in cases involving economic regulations.

To understand the Supreme Court's approach to constitutional rights, we need to consider another doctrine alongside that of incorporation: substantive due process. We'll spend the next several episodes looking at the ebb and flow of the Supreme Court's Fourteenth Amendment substantive due process jurisprudence.

The Supreme Court settled on selectively incorporating rights from the Bill of Rights into the Due Process Clause of the Fourteenth Amendment in a series of cases in the mid-twentieth century. The story of how that happened has a lot of twists and turns that were summarized in Justice Alito's opinion announcement in McDonald v. City of Chicago (2010).

In the Slaughter-House Cases (1873), the Supreme Court gave its first major interpretation of the meaning of the Fourteenth Amendment. The result was a narrow reading of the Fourteenth Amendment's Privileges or Immunities Clause that left intact the basic antebellum understanding of the relationship between the Bill of Rights and the States that we saw in Barron v. Baltimore (1833). However, that understanding began to change in the 20th century when the Supreme Court started incorporating aspects of the Bill of Rights into how it read the Fourteenth Amendment's Due Process Clause.

In Barron v. Baltimore (1833), the Supreme Court highlighted the dominant understanding in the nineteenth century that the limitations on government in the Bill of Rights apply only the national government and not to state governments. Somewhere along the way, that understanding has changed. Over the next few episodes, we'll discuss the complicated story of how we came to apply (most of) the Bill of Rights to the states.

In this episode, we look at specific clauses in the Constitution that address the institution of slavery and consider briefly Hamilton's case against the Bill of Rights in Federalist no. 84.

In the Declaration of Independence, the Continental Congress affirmed as a self-evident truth that "all Men are created equal" and "endowed by their CREATOR, with certain unalienable Rights" and "that among these are Life, Liberty, and the Pursuit of Happiness." The Declaration then moves to the question of political forms, or which constitution of government is "most likely to effect their Safety and Happiness." The charges against the King that the colonists then submit as facts to a candid world point to an answer to this question by highlighting ways in which the King violated the principle of government by consent by interfering with representative legislatures; did not allow for an independent judiciary; and abused executive power. Read in this light, the Declaration helps to make sense of the structure of the state and national constitutions written after the Declaration of Independence. Unlike the Declaration, however, the U.S. Constitution first drafted in 1787 did not mention individual rights, a lacuna we will explore next week.

In his famous "I Have a Dream" speech, Martin Luther King, Jr., pointed back to the Declaration of Independence and the Constitution. "When the architects of our Republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every American was to fall heir." Packed within the first paragraphs of King's most famous speech are questions of importance for us as we study constitutional rights this semester.

Over the summer, the Supreme Court decided the case of Chiafalo v. Washington about whether a state could remove or sanction a presidential elector for casting a ballot contrary to the expressed will of the voters of the state. According to the Court, it can. On Monday, presidential electors will cast ballots for president, and it will be interesting to see whether there are any faithless electors this cycle. Yet the Chiafalo decision brings up what is perhaps a more important question: can the states voluntarily enter a compact to award their votes to the winner of the national popular vote? Could they use the Electoral College to enact a national popular vote? Conversation about just that question has already begun to pick up.

In this episode, we first look at the Supreme Court's decision in Citizens United v. FEC (2010) and then talk with Mizzou Economics Professor Jeff Milyo about his new co-authored book https://press.uchicago.edu/ucp/books/book/chicago/C/bo51203857.html (Campaign Finance and American Democracy: What the Public Thinks and Why it Matters).

This episode takes a look at three different cases: Reynolds v. Sims (1964) about malapportioned districts; Shaw v. Reno (1993) about racial gerrymandering; and Rucho v. Common Cause (2019) about partisan gerrymandering. According to the Supreme Court, districts cannot be malapportioned or drawn in a way that intentionally groups voters based on race. The practice of intentionally grouping voters based on partisanship is not something the Court is willing to address, however, and Chief Justice John Roberts explains why in his opinion announcement in Rucho.

The short answer of what happened to the Voting Rights Act is that the Supreme Court in Shelby County v. Holder (2013) held that one of the main sections of the Voting Rights Act was unconstitutional. Before getting to the longer answer of why the Court came to that conclusion, we will pick up a theoretical background question: is the United States a republic or a democracy?

The Affordable Care Act of 2010 contained a provision that required most Americans to purchase health insurance or pay a penalty to the federal government. In NFIB v. Sebelius (2012), the Supreme Court took up a challenge to this provision and held that Congress did not have the authority to pass the provision under the Commerce Clause but that it did have the authority to pass the provision under its enumerated power to lay and collect taxes.

After the New Deal and the major cases about Title II of the Civil Rights Act of 1964, there was an open question about the limits of congressional power under the Commerce Clause. The first cases after Wickard v. Filburn (1942) to hold acts of Congress unconstitutional under the Commerce Clause were United States v. Lopez (1995) Morrison v. United States (2000). Together with Gonzalez v. Raich (2005), these three cases put a distinctive mark on the Rehnquist Court's Commerce Clause jurisprudence and set up the more recent constitutional debate about the Individual Mandate provision in the Affordable Care Act.

Title II of the Civil Rights Act of 1964 prohibits racial discrimination in public accommodations. That part of the Act was challenged in Heart of Atlanta Motel v. United States (1964) when the owner of the motel said that Congress did not have the authority to pass Title II of the Civil Rights Act in the first place. In a unanimous decision, the Supreme Court upheld the act as an exercise of Congress' power to regulate interstate commerce.

Justice Owen Roberts' 1937 vote to uphold a minimum wage law is remembered as the "switch in time that saved nine." It came on the heels of Franklin Roosevelt's March 9, 1937, fireside chat, where he criticized the Supreme Court for blocking needed economic reforms and proposed adding a number of justices to the Supreme Court. After the "switch in time," Roosevelt's judicial reform bill faltered and the Supreme Court upheld other major economic regulations passed by Congress. Whether or not Roosevelt's court-packing plan influenced Justice Roberts' vote, the Court's Commerce Clause jurisprudence looked very different after 1937.

Prior to 1937, the Supreme Court's Commerce Clause jurisprudence made hard distinctions between commerce and such things as manufacturing and labor. This episode takes a look at three cases from the late nineteenth and early twentieth centuries: United States v. E.C. Knight (1895); Champion v. Ames (1903); and Hammer v. Dagenhart (1918). Next, we will explore the Supreme Court's move away from these precedents beginning in the 1937 case of NLRB v. Jones & Laughlin Steel Corp.

One of the powers of Congress, listed in Art. 1, Sec. 8 of the Constitution, is the power to regulate commerce among the several states. Like a lot of big constitutional issues, the terms of debate for understanding the Commerce Clause were set by Chief Justice John Marshall in a decision from the early nineteenth century. In Gibbon v. Ogden (1824), Marshall argued that we should interpret the power to regulate commerce broadly, in light of the purpose of the Constitution to create a national government independent of the states and with powers adequate to achieve the great objects of national power.

The case of Granholm v. Heald (2005) involves this question: may a state ban direct shipments to consumers from out-of-state wineries while allowing direct shipments to consumers from in-state wineries? The question forces us to consider the ways our national experiment with Prohibition in the 18th Amendment (1919) and its repeal in the 21st Amendment (1933) continues to affect the powers of state governments with respect to alcohol regulation.

In 2010, Congress passed the Affordable Care Act expanding Medicaid eligibility, and the Arizona state legislature passed S.B. 1070 making it a state-level offense to violate certain provisions of federal immigration law. The Supreme Court heard challenges to each law in 2012, and the outcome of each case hinged on particular conceptions of the division of authority between the states and the national government under the U.S. Constitution.

In the 1990s, the Supreme Court under Chief Justice William Rehnquist began slowly chipping away at national regulatory power by applying federalism-based limits on congressional authority. In two cases we examine today -- New York v. United States (1992) and Printz v. United States (1997) -- the Court articulated the anti-commandeering doctrine, drawing a bright line that prevents the national government from commandeering the state governments and forcing them into a national regulatory scheme.

The power to tax involves the power to destroy, Chief Justice John Marshall famously said in McCulloch v. Maryland (1819), the textbook federalism case from the early republic. Marshall's opinion in that case set the terms of debate for many of the constitutional controversies that would follow about the division of authority between the states and the national government. These controversies bring up fundamental questions about what kind of national government the Constitution created.

In May of 2009, President Obama said in a speech on national security that the political and constitutional challenges surrounding the ongoing detention of individuals held at the U.S. Naval Base at Guantanamo Bay, Cuba, would be one of the toughest issues his administration would face. This episode explores the constitutional authority of the President, Congress, and the Courts in this area of law through an analysis of the constitutional disputes in the cases of Hamdan v. Rumsfeld (2006) and Boumediene v. Bush (2008).

Using two cases from Franklin Roosevelt's administration - United States v. Curtiss-Wright Export Corp. (1936) and Korematsu v. United States (1944) - this episode explores a fundamental constitutional question: what is executive power? Justice Sutherland's opinion in Curtiss-Wright offers a high-level civics lesson on the constitutional difference between the enumerated powers of the government in domestic affairs and the largely unenumerated powers of the president in foreign affairs. The case of Korematsu, about the detainment of 120,000 Japanese-Americans during World War II, however, blurs the line between domestic affairs, on the one hand, and foreign affairs, on the other, and challenges us to think about the constitutional limits of executive power.

Who has the authority to take the country to war - Congress or the President? Constitutionally, it takes both. The President is commander-in-chief of the armed forces of the United States. Military leaders report to him, and he ultimately is responsible for strategic U.S. military objectives and operations. Congress, on the other hand, has the power to raise revenue to provide for the common defense, raise armies, maintain a navy, and write rules governing U.S. land and naval forces. Significantly, Congress also has the power to declare war; but does that mean the President cannot engage in war without congressional authorization? This is a subject of ongoing interpretive dispute between Congress and the President that gets to the core of the Constitution's allocation of war powers.

Presidents often exercise enormous power through little more than the stroke of a pen. Harry Truman issued an executive order authorizing his Secretary of Commerce to seize and operate most of the nation's privately-owned steel mills, while Abraham Lincoln suspended Habeas Corpus in a letter to one of his generals and instituted a blockade of southern ports with a presidential proclamation. The constitutional arguments in each instance are similar, and they bring up a fundamental question that we will continue to explore in the next few episodes: what powers do presidents have simply by virtue of being commander-in-chief and chief executive of a sovereign nation?

The case of Missouri v. Holland (1920) takes up the question of Congress' authority to pass legislation to implement international treaties. The Constitution creates a national legislature with limited and enumerated powers, but the Constitution does not specifically put limits on the treaty-making power. Can Congress pass domestic legislation to implement a treaty if it would not otherwise have that constitutional authority? According to the Supreme Court, yes - but Justice Thomas' concurring opinion in the recent case of Bond v. United States (2014) suggests that the issue is not quite settled.

In this episode, we consider the concepts of executive privilege, presidential immunity, when you can sue a president, and whether the president can be criminally indicted. The short answer: it's complicated. To get started thinking about these issues, we revisit several landmark cases involving presidents Nixon, Clinton, and Trump.

The separation of powers is a structural feature of the Constitution, but the precise boundaries between the institutions of the federal government are not always clearly demarcated in the text. Each of the cases we explore today involve the contested boundaries marking the constitutional separation of powers: Youngstown v. Sheet & Tube Co. (1952); Powell v. McCormack (1969); and INS v. Chadha (1983).