How does the Supreme Court act as the defender of the Constitution?
The courts power as stated in the Constitution is limited to
disputes between states and to any case in which the United States is
a party. As a result the Courts decision in Marbury v Madison the
power of judicial review was created.
Marbury v Madison
On the eve of his last day in office outgoing President John
Adams, a Federalist, appoints 82 Federalist justices. These “midnight
judges” as they were called represented a threat to incoming
President Thomas Jerreson, a Democrat-Republican. Jefferson feared
Federalist interpretation of the law for the next 20 years, a fear
that ended up coming to fruition. Among these midnight judges was one
William Marbury. Jefferson ordered his Secretary of State, James
Madison, not to deliver the official documents granting Marbury his
position. Based upon the Judiciary Act of 1801 Marbury appealed
directly to the Supreme Court asking for a “writ of mandamus” or an
order to act.
Chief Justice John Mashall recognized he would be correct in
ordering Madison to deliver the papers but feared weakening the image
of the Court if President Jefferson refused to comply. Instead
Marshall ruled that the Judiciary Act of 1801, which Marbury had used
to submit his claim directly to the Court wa s unconstitional, and it
was. In this way the Court was able to rule a law unconstitutional
and thus created the important precedent of judicial review.
Judicial Review – The power of the court to declare
a law unconstitutional.
Precedent – A ruling or decision upon which later
decisions are based.
The court’s power extends through a three tiered federal court
system. Cases orginate in District Court. These cases are local and
have original jurisdiction. If appealed a case goes to Circuit Court.
These cases are said to have apellate jurisdiction. There are twelve
Circuits. If one wants to persue the case further they may file a
brief with the Supreme Court which also has appellate jurisdiction.
The Supreme Court hears only the cases it chooses.
Gibbons v Ogden
Ogden held a New York State license allowing him to operate a
ferry across the Hudson between New York and New Jersey. Gibbons
recieved a Federal license and claimed that his license superceded
that of Ogden.
The court ruled that Gibbon’s federal license took precedence over
that of Ogden because the federal government was given the power to
reglate interstate trade.
McCulloch v Maryland
Angered by the existence of the new Federal bank, the state of
Maryland decided to tax the bank. McCulloch, a cashier for the bank
refused to pay the tax claiming that a state had no power or right to
tax the federal government.
The Supreme Court affirmed McCulloch’s position. This precedent
established the superiority of the federal
Freedom of Speech/Expression
Schenck v United States (1919)
Charles Schenck was arrested for violating the Espionage Act,
passed by Congress in 1917. The Espionage Act made it illegal to
defame the government or do anything that might retard the war
effort. Schenck, a member of the Socialist Party, opposed the war and
printed and distributed pamphlets urging citizens to oppose the draft
which he likened to slavery. Schenck claimed his first amendment
rights were violated.
The court ruled against Schenck saying that the Espionage Act did
not violate the first amendment and that in times of war the
government may place reasonable limitations on freedom of speech.
Justice Oliver Wendell Holmes outlined the courts opinion by
explaining that when a “clear and present danger” existed such as
shouting fire in a crowded theater, freedom of speech may be limited.
Debs v. United States (1919)
Eugene V. Debs, a well known socialist, gave a public speech to an
assembly of people in Canton, Ohio. The speech was about the growth
of socialism and contained statements which were intended to
interfere with recruiting and advocated insubordination, disloyalty,
and mutiny in the armed forces. Debs was arrested and charged with
violating the Espionage Act of 1917. At issue was whether the United
States violated the right of freedom of speech given to Debs in the
First Amendment of the United States Constitution.
The Supreme Court of the United States upheld the lower court’s
decision in favor of the United States. The Court said that Debs had
actually planned to discourage people from enlisting in the Armed
Forces. The Court refused to grant him protection under the First
Amendment freedom of speech clause, stating that Debs “used words [in
his speech] with the purpose of obstructing the recruiting service.”
Debs’ conviction under the Espionage Act would stand, because his
speech represented a “clear and present danger” to the safety of the
Dennis v. United States (1951)
Eugene Dennis was a leader of the Communist Party in the United
States between 1945 and 1948. He was arrested in New York for
violation of Section 3 of the “Smith Act.” The Act prohibited
advocation of the overthrow of the United States Government by force
and violence. The government felt that the speeches made by Dennis
presented a threat to national security. Dennis appealed his
conviction to the Supreme Court of the United States, claiming that
the Smith Act violated his First Amendment right to Free Speech. At
issue was whether the Smith Act violated the First Amendment
provision for freedom of speech or the Fifth Amendment due process
The Court found that the Smith Act did not violate Dennis’ First
Amendment right to free speech. Although free speech is a guaranteed
right, itis not unlimited. The right to free speech may be lifted if
the speech presents a clear and present danger to overthrow any
government in the United States by force or violence. Since the
speech made by Dennis advocated his position that the government
should be overthrown, it represented a clear and present danger to
the national security of the United States. (From P.A.T.C.H – see
Yates v. United States (1957)
In 1951, fourteen persons were charged with violating the Smith
Act for being members of the Communist Party in California. The Smith
Act made it unlawful to advocate or organize the destruction or
overthrow of any government in the United States by force. Yates
claimed that his party was engaged in passive actions and that any
violation of the Smith Act must involve active attempts to overthrow
At issue was whether Yates’ First Amendment right to freedom of
speech protected his advocating the forceful overthrow of the
government. The Supreme Court of the United States said that for the
Smith Act to be violated, people must be encouraged to do something,
rather than merely to believe in something. The Court drew a
distinction between a statement of an idea and the advocacy that a
certain action be taken. The Court ruled that the Smith Act did not
prohibit “advocacy of forcible overthrow of the government as an
abstract doctrine.” The convictions of the indicted members were
reversed. (From P.A.T.C.H – see link below)
Tinker v Des Moines (1969)
Several students and parents in Des Moines organized a protest of
the Vietnam war. Students were to wear black arm bands to school in
protest. When the school found out they warned all the students and
parents that anyone wearing the armbands would be would be suspended.
The Tinker children wore their armbands to school (they were the only
ones of the group to do so) and were suspended. Mr and Mrs. Tinker
filed suit claiming that the school violated the children’s right to
freedom of speech and expression. The school claimed that the
armbands were disruptive.
The court ruled against the school district saying that “students
do not shed their constitutional rights at the school house gates. In
doing so the court protected what has come to be known as “symbolic
Island Trees School District v. Pico – 1982 – Freedom of
The Board of Education of the Island Trees School District in New
York directed the removal of nine books from the libraries of the
Island Trees senior and junior high schools because in the Board’s
opinion the books were “antiAmerican, antiChristian,
antiSemitic, and just plain filthy.” Some books included were:
The Fixer, Soulon Ice, Slaughterhouse Five, Go AskAlice, The Best
Stories by Negro Writers, and others. Four students from the high
school and one from the junior high school sued the school district,
claiming that the removal of the books was a violation of the First
Amendment’s guarantee of freedom of speech.
The Supreme Court of the United States ruled in favor of the
students, saying that the books were not required reading. According
to Justice Brennan, who cited West Virginia Board of Education v.
Bamette, 319 U.S.624 (1943), “Local school boards may not remove
books from school library shelves simply because they dislike the
ideas contained in these books and seek by their removal to prescribe
what shall be orthodox in politics, nationalism, religion, or other
matters of opinion.” He also cited Tinker v. Des Moines School
District, 393 U.S.503 (1969), saying that high school students have
First Amendment rights in the classroom. Although the schools have a
right to determine the content of their libraries, they may not
interfere with a student’s right to learn. Therefore, the schools may
not control their libraries in a manner that results in a narrow,
partisan view of certain matters of opinion. The Court stood against
the removal or suppression of ideas in schools.
Bethel School District v Fraser (1986) – Free
Matthew Fraser, a high school student in Bethel, Washington,
delivered a speech nominating a fellow student for a student elective
office. The speech was made during school hours as a part of a
school-sponsored educational program in self-government. The
voluntary assembly was attended by about 600 students, many of whom
were 14-year-olds. Throughout the speech, the student deliberately
referred to his candidate in terms of an elaborate and explicit
sexual metaphor. The reactions of the students varied from
enthusiastic hooting and yelling to embarrassment and bewilderment.
Before the speech, the student had discussed it with several
teachers, and two teachers told him they thought it was not
appropriate. The student was suspended for three days for having
violated the school’s “disruptive conduct” rule, which prohibited
conduct that substantially interfered with the educational process,
including the use of obscene, profane language or gestures.
The U.S. Supreme Court held that the school board acted entirely
within its permissible authority in punishing Fraser for “his
offensively lewd and indecent speech.” This was not a situation where
Fraser was sanctioned for expressing a political viewpoint as in the
Tinker “armband” case; the sexual innuendo was incidental to the
merits of the candidate who was being nominated. “It is a highly
appropriate function of public school education to prohibit the use
of vulgar and offensive terms in public discourse . . . Schools must
teach by example the shared values of a civilized social order.”
The Court repeated its recognition of an interest in protecting
minors from exposure to vulgar and offensive spoken language. Even in
a heated political discourse among adults, the Court emphasized the
need for consideration for the personal sensibilities of the
audience. “A high school assembly or classroom is no place for a
sexually explicit monologue directed towards an unsuspecting audience
of teenage students.” The Court also stated that the school
regulation and the negative reactions of two teachers gave Fraser
sufficient notice that his speech might result in his suspension.
Texas v. Johnson (1989)
Outside the Republican National Convention in Dallas, a protest of
Ronald Reagan’s policies had been organized, during which a United
States flag was burned. Johnson, the man responsible for the flag
burning, was arrested under Texas law, which made the desecration of
the United States or Texas flags crimes. Johnson was convicted and
sentenced to one year in jail and a two thousand dollar fine. Texas
reasoned that the police were preventing the breach of peace that
would be erupt due to the flagburning, and preserving the integrity
of the flag as a symbol of national unity.
Johnson’s conviction was overturned by theSupreme Court of Texas,
which ruled that this mode of self-expression was protected under the
First Amendment to theConstitution. The Supreme Court upheld this
ruling, stating the flag burning was “expressive conduct” because it
was an attemptto “convey a particularized message.”
Presidential Priviledge/Seperation of powers
United States v. Nixon – (1972) – Prsidential Priviledge
In the late 1970’s, the Democratic National Headquarters at the
Watergate Office Building in Washington, D.C., was broken into. The
investigation that followed centered on staff members of then
Republican President Richard M. Nixon. The Special Prosecutor
subpoenaed certain tapes and documents of specific meetings held in
the White House. The President’s lawyer sought to deny the subpoena.
The Special Prosecutor asked the Supreme Court of the United States
to hear the case before the lower appeals court ruled on the
President’s appeal to deny the subpoena.
By an 80 vote, the Court decided that President Nixon must
hand over the specific tapes and documents to the Special Prosecutor.
Presidential power is not above the law. It cannot protect evidence
that may be used in a criminal trial.
Freedom of the Press/Censorship
NY Times v United States (1971)
The New York Times received secret info about the US involvement
in the Vietnam War, specifically what had “really” happened at the
Gulf of Tonkin. It turned out that the President had exaggerated the
incident and used that exaggeration to gain increased war powers form
congress (the Gulf of Tonkin Resolution). The New York Times sought
to publish the information and the government attempted to get an
injunction barring them from going to press with it. The Times sued
claiming that the government was infringing upon their first
amendment right of freedom of speech. The government claimed that a
limitation of that right was in order because it was dangerous to the
security of the nation.
The court affirmed the position of the New York Times. The court
ruled that the information did not represent a clear and present
danger to national security and that the governments attempt to
suppress the information was an attempt at censorship and a violation
of first amendment rights to freedom of the press.
Hazelwood School District v. Kuhlmeier (1988) –
Censorship/State Rights v. Students’ Free Press Rights
Kathy Kuhimeier and two other journalism students wrote articles
on pregnancy and divorce for their school newspaper. Their teacher
submitted page proofs to the principal for approval. The principal
objected to the articles because he felt that the students described
in the article on pregnancy, although not named, could be identified,
and the father discussed in the article on divorce was not allowed to
respond to the derogatory article. The principal also said that the
language used was not appropriate for younger students. When the
newspaper was printed, two pages containing the articles in question
as well as four otherarticles approved by the principal were deleted.
The Supreme Court of the United States held that the Hazelwood
School District did not violate the First Amendment right of the
students. The Court ruled that School officials need not tolerate
speech which is inconsistent with the school’s basic educational
mission. The Court distinguished this case from the Tinker decision
(school officials could not punish students for wearing armbands in
protest of the Vietnam war “students do not shed their constitutional
rights at the schoolhouse gate”) because the Tinker case involved a
student’s personal expression. This was, instead, a school newspaper,
and as such could reasonably be perceived to bear the “imprimatur” of
the school. They justified this because the publication of Spectrum
was a part of the curriculum, i.e., it was in the curriculum guide as
a part of the Journalism course, it was taught during school hours by
a faculty member, the students received grades and academic credit,
the faculty advisor exercised control over the publication, and the
principal had to review it. The school’s policies did not reflect an
intent to expand the students’ rights by converting a curricular
newspaper into a public forum. The court further added that the
principal’s fears were reasonable: he was concerned that the
students’ identities could not be assured, that the privacy interests
of boyfriends and parents were not adequately protected, and that
parents mentioned in the divorce article were not given an
opportunity to defend themselves.
Search and Seizure
Weeks v. United States (1914)
Fremont Weeks was suspected of using the mail system to distribute
chances in a lottery, which was considered gambling and was illegal
in Missouri. Federal agents entered his house, searched his room, and
obtained papers belonging to him. Later, the federal agents returned
to the house in order to collect more evidence and took letters and
envelopes from Weeks’ drawers. In both instances, the police did not
have a search warrant. The materials were used against Weeks at his
trial and he was convicted. At issue was whether the retention of
Weeks’ property and its admission in evidence against him violated
his Fourth Amendment right to be secure from unreasonable search and
seizure andhis Fifth Amendment right not to be a witness
The Supreme Court of the United States unanimously decided that as
a defendant in a criminal case, Weeks had a right to be free from
unreasonable search and seizure and that the police unlawfully
searched for, seized, and retained Weeks’ letters. The Court praised
the police officials for trying to bring guilty people to punishment
but said that the police could not be aided by sacrificing the
fundamental rights secured and guaranteed by the Constitution. [This
decision gave rise to the Exclusionary Rule.” This meant that
evidence seized in violation of the Constitution cannot be admitted
during a trial.] (From P.A.T.C.H – see link below)
Mapp v Ohio (1961)
Dorlee Mapp was suspected of having information in her home that
would implicate a suspected bomber. The police came to her home and
asked if they might search the residence. Ms. Mapp called her lawyer
and was advised to ask for a warrant. They police did not have a
warrant and were asked to leave. Hours later the police returned and
forcibly entered the residence. Mrs. Mapp demanded to see the warrant
and a piece of paper was waved in her face. Mrs. Mapp grabbed the
paper and tucked it in her blouse. A struggle ensued where Ms. Mapp
was knocked to the ground as police retrieved the supposed warrant.
Outside Ms. Mapp’s attorney arrived on the scene but was prevented
from entering the residence. The police found pornographic materiels
in the house and Ms. Mapp was arrested for possession of lewd
materials. Ms. Mapp was convicted of this crime. Ms.. Mapp appealed
her conviction on the grounds that the search of her home was in
violation of her rights.
The court ruled that the evidence obtained in the search was
inadmissable because it was seized in an illegal search. In ruling
this way the court created the “exclusionary rule” which makes
illegally obtained evidence inadmissable in court. This ruling upheld
the principles of the fourth amendment.
New Jersey v T.L.O. (1984)
Two students were found smoking in the girls bathroom. One student
confessed but the other, T.L.O. (her initials), denied smoking. In
fact, T.L.O. claimed she did not smoke at all. The school Assistant
Principal then proceeded to search T.L.O.’s purse. In the purse he
found Marijuana in small bags, rolling paper, a large amount of cash
and a list of names who owed T.L.O. money. The police were summoned
and T.L.O. was arrested. T.L.O. was convicted and through the appeals
process the case eventually went to the Supreme Court. T.L.O. claimed
that the search of her purse violated her Constitutional rights.
The Court ruled against T.L.O. setting new standards for school
officials. The Court ruled that school officials may search a student
under “reasonable suspicion.” The standard is less than that required
of police therefore giving school officials much broader search
powers under the fourth amendment.
Rights of the Accused
Betts v Brady – 1942 – Right To Counsel
Betts was indicted for robbery and detained in a Maryland jail.
Prior to his trial, he asked for counsel to represent him. This
request was denied and he was soon convicted. While incarcerated,
Betts filed a habeas corpus petition in the lower courts. After they
rejected his petitions, he filed a certiorari petition with the
Supreme Court, which agreed to hear his case. Bett argued that his
6th Amendment right to a fair trial was violated because of his lack
of counsel. The State of Maryland held that most states did not
require the appointment of counsel in non-capital cases and the
circumstances of this particular case did not require it.
Although the Court found in favor of Betts, it decided that the
right to counsel must be decided on a case- by-case basis. This
ruling was upheld for 20 years until it was overturned by Gideon v.
Wainwright in 1963.
Gideon v Wainwright (1963)
Gideon was accused of breaking into a poolroom. Gideon, an ex con,
was too poor to pay for a lawyer and asked the court to appoint one
for him. The court refused to grant his request stating that lawyers
were only provided for those accused of committing capital crimes
like murder, rape, etc. Gideon was tried and was forced to defend
himself. While in Prison Gideon hand wrote a plea to the Supreme
Court and was granted a hearing. At this point he received
representation from lawyers who were attracted to his case. Gideon
argued that his right to a fair trial was violated.
Gideon’s position was upheld. The Court ruled that all citizens
must be provided a lawyer if they cannot afford one. This is
regardless of the type of crime.
Miranda v Arizona (1966)
Ernesto Miranda was arrested for the kidnaping and rape of a young
woman. Upon arrest Miranda was questioned for two hours. He never
asked for a lawyer and eventually confessed to the crime. Later,
however, a lawyer representing Miranda appealed the case to the
Supreme Court claiming that Miranda’s rights had been violated.
Miranda was acquitted. The Court ruled that citizens must be
informed of their rights prior to questioning. Any evidence or
statement obtained prior to a suspect being read his/her rights is
inadmissable. This has led to what is commonly referred to as one’s
“Miranda Rights” having to be read upon questioning or arrest. They
are: “You have the right to remain silent, anything you say can, and
will be used against you in a court of law. You have the right to an
attorney. If you cannot afford one, one will be appointed for you.”
Note, Miranda was later killed in a barroom brawl, stabbed to death.
Plessey v Ferguson (1896)
Homer Plessey, a member of a citizens group protesting the Jim
Crow laws that created segregation in the south, was arrested for
violating the law that forced Blacks to ride in separate train cars.
Plessey claimed that the laws violated the 14th amendment
to the Constitution that said that all citizens were to receive
“equal protection under the law.” The state argued that Plessey and
other Blacks did receive equal treatment, just separate.
Plessey’s conviction of a violation of Jim Crow laws has upheld by
the Court. The Court ruled that the 14th amendment did say
that Blacks had the right to the same facilities, just equal
facilities. By ruling this way the court created the doctrine of
“separate but equal.”
Brown v Board of Ed. Topeka Kansas (1954)
Linda Brown, a student in the segregated Topeka Kansas school
district had to walk 5 miles to school each day. Across the train
tracks from her house there was a white school she was unable to
attend. Oliver Brown enlisted the help of the NAACP to ensure that
his daughter was able to go to the best school possible. Thurgood
Marshall, then head of the NAACP, challenged the segregation of the
school claiming that the laws violated the 14th amendment
to the Constitution that said that all citizens were to receive
“equal protection under the law.” The state argued that Plessey v
Ferguson had set the precedent and that the laws was clear on this
The court affirmed the position of Marshall and the Brown family
and overturned the precedent set by the Plessey decision. Justice
Earl Warren claimed that “in the eyes of the law, justice was
color-blind.” In ruling in favor of Brown the court ordered the
integration of America “with all deliberate speed.” The civil rights
movement had begun!
Korematsu v United States (1944)
In 1941 Congress passed a law called the Japanese Exclusion Act.
According to this law all those of Japanese decent had to be removed
from the west coast of the United States because we were at war with
Japan and the Japanese Americans living on the coast constituted a
threat to national security. Fred Korematsu, a Japanese American
citizen, challenged this law in court. He claimed that the law
violated the 14th amendment that guaranteed all citizens
equal protection under the law.
The court ruled that Japanese American citizens did in fact
represent a threat to national security. Note, the United States
government later apologized to the families of Japanese Americans
effected by this decision. A token financial settlement was made.
University of California Regents v Bakke (1976)
Alan Bakke, an engineer with high grades, applied to several
medical schools in the hopes of one day becoming a doctor. Bakke was
rejected by all of the schools he applied to but the University of
California at Davis encouraged him to apply again. The next year
Bakke again applied and was again rejected. Bakke then found out that
the University’s affirmative action program reserved 17 places for
minority candidates regardless of qualifications. Bakke sued the
University claiming that he was the victim of “reverse
discrimination.” The university argued that the creation of quotas
was needed to ensure minority admission to college under their
affirmative action program.
In a two part ruling the court ordered Bakke to be admitted to
medical school. The court ruled that Bakke had, in fact, been
discriminated against. The court did, however, uphold the legality of
affirmative action programs. The court cited Harvard Universities
affirmative action program that created guidelines for admission
rather than strict quotas.
Freedom of Religion
Engle v Vitale (1962)
In the late 1950’s the New York State Board of Regents wrote and
adopted a prayer which was supposed to be nondenominational. The
board recommended that the prayer be said by students in public
schools on a voluntary basis every morning. In New Hyde Park Long
Island a parent sued the school claiming that the prayer violated the
first amendment of the constitution. The school argued that the
prayer was nondenominational and did not attempt to “establish or
endorse” a religion and thus that it did not violate the
The court ruled against the school district and upheld the
establishment clause of the first amendment. Prayer in schools was to
be considered unconstitutional.
Abington v Schempp (1963)
This case involved a Pennsylvania law requiring that at least ten
Bible verses be read in public schools at the beginning of each day.
The Schempps, a family in Abington, sued the school district for
violating the first amendment of the constitution.
Just as in Engle v Vitale, religious instruction in school was
deemed to violate the 1st amendment of the constitution.
Epperson v. Arkansas (1968) Teaching of
Evolution/Establishment Clause v. State Rights
An Arkansas statute forbade teachers in public schools from
teaching the “theory or doctrine that mankind ascended or descended
from a lower order of animals.” A teacher determined that the law was
in valid and lost her job for violating it. The Supreme Court of the
United States was called in to review this statute which made it
unlawful for teachers in state schools to teach human evolution .
At issue was whether the Arkansas statute that prohibited the
teaching of evolution violated the establishment clause of the First
Amendment and the equal protection clause of the Fourteenth Amendment
of the Constitution because of its religious purpose.
The Court held that the Arkansas statute forbidding the teaching
of evolution in public learning institutions was contrary to the
freedom of religion mandate of the First Amendment, and was also in
violation of the Fourteenth Amendment. The Court ruled that a state
may not eliminate ideas from a school’s curricula solely because the
ideas come in conflict with the beliefs of certain religious groups.
In this case, the law that compelled the evolution doctrine to be
removed from the course of study was passed to agree with the
religious pointofview of certain fundamentalists. Thus,
the reason for removing the doctrine was to aid a religious
pointofview and, therefore, was violative of the First
Amendment. The Court said that the law must require religious
neutrality. (From P.A.T.C.H – see link below)
Wallace v. Jaffree (1985)
The parents of three children attending public school in Alabama
challenged the constitutionality of an Alabama law which authorized a
one minute period of silence in all public schools for meditation or
voluntary prayer. At issue was whether the Alabama law requiring a
one minute silence period encouraged a religious activity in
violation of the First Amendment establishment clause.
The Supreme Court of the United States held that the Alabama law
was a law respecting the establishment of religion and thus violated
the First Amendment. The Court said that the First Amendment was
adopted to limit the power of Congress to interfere with a person’s
freedom to believe, worship, and express himself as his conscience
tells him. The Amendment gives an individual the right to choose a
religion without having to accept a religion established by the
majority or by government.
The Court said that government must be completely neutral toward
religion and not endorse any religion. Therefore, statutes like the
Alabama law requiring one minute for silence in the schools must have
a secular or nonreligious purpose to be within the
Constitution. Since Senator Holmes, who was the primary sponsor of
the bill, testified “that the bill was an effort to return voluntary
prayer to our public schools,” the Court decided that the purpose of
the Alabama law was to endorse religion and was solely an effort to
return voluntary prayer to the public schools. It was, therefore,
struck down as being inconsistent with the Constitution. (From
P.A.T.C.H – see link below)
Right To Privacy
Roe v Wade (1973)
Norma McCorvey, a citizen of Texas, was pregnant and wanted to
have an abortion. Texas state laws (and most other states) made
abortion illegal in that state. Suing under the name Jane Roe she
claimed that the state of Texas violated her right to privacy by
prohibiting the abortion and telling her what to do with her own
body. The state argued that abortion was murder and that there was a
compelling state interest in protecting the life of the unborn child.
In this landmark decision the Court declared that laws prohibiting
abortion represented a violation of a women’s right to privacy. While
the right to privacy does to exist as such in the Constitution it has
long been interpreted to exist as an umbrella created by the first 5
amendments in the Bill of Rights. By creating this precedent abortion
became legal in all 50 states.
Olmstead v United States (Also a search and seizure case)
Roy Olmstead, a bootlegger, had a good business going during the
prohibition years. He sold liquor illegally in violation of the
18th amendment and the Volstead Act. The government in
searching for evidence used a new technology and tapped into
Olmstead’s phone lines. They recorded evidence against Olmstead,
arrested him and he was convicted using that evidence. Olmstead’s
lawyer appealed arguing that the police had violated his right to
privacy by listening in on his phone conversations. He further argued
that the evidence used to convict him should be thrown out because it
was obtained without a warrant.
Olmstead’s conviction was upheld as the court ruled that right to
privacy and the need for a search warrant did not apply to telephone
conversations. Attorney Louis D. Brandeis, later to become Supreme
Court Justice argued in defense of Olmstead to no avail. Later, when
Brandeis sat on the bench he helped to overrule that precedent in the
case of Near v Minnesota.
Katz v. United States (1961) (Also a search and seizure
Katz was arrested for illegal gambling after using a public phone
to transmit “gambling information.” The FBI had attached an
electronic listening/recording device onto the outside of the public
phone booth that Katz habitually used. They argued that this
constituted a legal action since they never actually entered the
The Courts decision written by now justice Louis D. Brandeis,
ruled in favor of Katz, stating the Fourth Amendment allowed for the
protection of a person and not just a person’s property againsty
illegal searches. Whatever a citizen “seeks to preserve as private,
even in an area accesible to the public, may be constitutionally