American Government and the Constitution Lecture Seven

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American Government and the Constitution Lectures: 1-2-3-4-5-6-7-8-9-10-11-12

Rights of Criminal Defendants

The Bill of Rights, which we discussed in greater detail in our prior lecture, includes fundamental procedural protections for criminal defendants, including: (1) the right to trial by an impartial jury; (2) the right against unreasonable searches and seizures (usually prohibiting a search without a warrant), (3) the right against Double Jeopardy (being retried after being found not guilty); (4) the right to receive a "Miranda warning" (explained below); (5) the right to a hearing before a judge if held in jail (known as the writ of habeas corpus); and (6) protection against cruel and unusual punishment. These protections found in the 4th, 5th, 6th and 8th Amendments to the Constitution.

The "Miranda warning" is a statement that must be read to all criminal suspects before an officer asks him questions, as established by the Supreme Court decision of Miranda v. Arizona (1966):

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 speak to an attorney, and to have an attorney present during any questioning. If you cannot afford a lawyer, one will be provided for you at government expense.

The United States protects criminal defendants far more than any other country. Should we?

Over the past few decades, there has been a vast expansion by the federal government in prosecuting crime, and an enormous increase in the prison sentences imposed. The federal government now routinely imposes sentences of 20 years or more for crimes, often non-violent ones, that traditionally would have been handled by state or local law enforcement. A former Republican congressman and presidential candidate Ron Paul opposed the Patriot Act because he objected to how it can be used by the federal government to harass law-abiding citizens. He feels that the Constitution authorizes federal involvement in only a few specific types of crimes, such as treason or misconduct on the "high seas" (oceans), and that the federal government should expand its power into other areas.

Protection Against "Cruel and Unusual Punishment"

The Eighth Amendment expressly prohibits "cruel and unusual punishment":

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Every few years, the U.S. Supreme Court accepts and decides a challenge by a defendant or prisoner to punishment against him by one of the States. For example, a 5-4 Supreme Court ruled, in Harmelin v Michigan (1991), that a sentence of prison for the rest of someone's life for a first-time offense of possession of cocaine did not violate the Eight Amendment ban on cruel and unusual punishment. Two of the nine Justices felt that the Eight Amendment does not limit the proportionality of a prison sentence in any way, but that it merely prohibits certain types of punishment (such as prohibiting the "tarring and feathering" of a prisoner). Torture has never been legal in the United States, or even in colonial America. The Eighth Amendment makes sure it never will be allowed.

But issues continue to arise about whether the Eighth Amendment prohibits practices like imposing the death penalty as punishment for a heinous crime. In the past few decades many Justices on the U.S. Supreme Court, but never a majority, have felt that the Eighth Amendment prohibits capital punishment today. (The death penalty is known as "capital punishment.")

Five out of nine Justices took an approach of "evolving standards of decency" to rule that capital punishment could not be applied against someone based on a murder that he committed before the age of 18, in Roper v Simmons (2005). The Supreme Court has also ruled that it is a violation of the Eighth Amendment to execute mentally handicapped individuals.

The Supreme Court has held that the Eighth Amendment does require special procedural protections before any court can impose the death penalty.

The Eighth Amendment was used in an attempt to limit corporal punishment of students in public school (such as beating a student with a wooden paddle), but by a vote of 5-4 the Court rejected applying the Eighth Amendment beyond the context of criminal punishment of defendants, in Ingraham v Wright (1977).

Amendments 11-27

While we have focused mostly on the Bill of Rights (Amendments I through X), there are a total of 27 amendments to the U.S. Constitution, including 17 amendments in addition to the Bill of Rights. Among these the most important are the 14th and 15th Amendments, which were passed as a result of the Civil War, the 17th Amendment, which established the direct election of U.S. Senators by the people, and the 22nd Amendment, which places a "term limit" of at most two full terms in office for a president.

14th Amendment

The 14th Amendment is the most often-used Amendment after the Bill of Rights. The 14th Amendment was passed after the Civil War to prohibit discrimination by the southern States against the former slaves. The 14th Amendment is directed against the States, and prohibits State laws from discriminating or violating other constitutional rights.

There are three important aspects of the 14th Amendment:

  • its Equal Protection Clause
  • the "incorporation doctrine"
  • its Due Process Clause

Let's look carefully at each of these three concepts.

Equal Protection Clause

The Equal Protection Clause of the 14th Amendment is this: "No state shall ... deny to any person within its jurisdiction the equal protection of the laws." That means any law which treats people differently based on their race (ethnicity or skin color) is unconstitutional and cannot be enforced. For example, it is illegal for public schools to segregate students based on their race. The U.S. Supreme Court ended segregation in public schools in Brown v. Board of Education (1954).

The Equal Protection Clause prohibits other forms of unequal treatment by government too. The Supreme Court, applying the 14th Amendment, ordered the all-male Virginia Military Institute (VMI) to admit women. But because the Equal Rights Amendment never became part of the Constitution, not all government laws treating men and women differently are unconstitutional. For example, the military can have a men-only military draft. But the military could not draft whites without also drafting blacks, because discrimination by government based on race is never allowed. "Strict scrutiny" is a very demanding legal standard that applies to invalidate any discrimination by government based on race.

But notice the qualifier "by government." The 14th Amendment applies only to government. The 14th Amendment does not apply to private individuals, clubs, churches, sports teams, etc. Major League Baseball excluded blacks until after World War II, for example, and the 14th Amendment says nothing about that. But other laws prohibit discrimination by places of public accommodation, such as hotels and restaurants. And the New Jersey Law Against Discrimination is the strongest in our Nation in prohibit discrimination far beyond what the 14th Amendment requires. Keep in mind that the U.S. Constitution sets a minimal standard against discrimination; States can often go beyond what the Constitution requires.

The Equal Protection Clause is used today to seek constitutional rights beyond issues of racial and gender discrimination. Gays seek a right to marry under the Equal Protection Clause, by claiming they are discriminated against in violation of this Clause when a State does not allow same-sex marriage. In October 2014, the U.S. Supreme Court shocked court-watchers when it declined to review several decisions holding that state limitations of marriage to individuals of the opposite sex violate the United States Constitution.

"Incorporation Doctrine"

As with the Free Speech Clause, Courts have repeatedly expanded the scope of the 14th Amendment. "Incorporation doctrine" is an example. It is a doctrine invented by the U.S. Supreme Court in order to "incorporate" the Bill of Rights into the 14th Amendment, and thereby apply the Bill of Rights against the States. Recall that the Bill of Rights were originally intended to apply only against the federal government.

"Incorporation doctrine" means that the 14th Amendment includes the Bill of Rights and prohibits violations of the first ten Amendments by the States. So when someone challenges a New Jersey law for infringement on free speech, then he is suing under the Free Speech Clause as incorporated into the 14th Amendment to apply against the State of New Jersey.

"Due Process Clause"

The Due Process Clause of the 14th Amendment is this: "No state shall ... deprive any person of life, liberty, or property, without due process of law."

This clause has been used by the U.S. Supreme Court to create two types of rights: procedural and substantive.

The procedural rights consist of legal process: advance notice of a legal hearing, a right to be heard, a right to have your attorney there, a right to call and cross-examine witnesses, a right to a reasoned decision, etc. When the government takes away your property ("eminent domain"), fires you from a government job, or takes some other type of formal action, the 14th Amendment gives you a right to "due process." This is a logical extension of what the 14th Amendment says. A right to "due process" means a right to the "process that is due" - i.e., certain "procedural" protections.

The creation of "substantive" due process rights created by the U.S. Supreme Court is not a logical extension of what the 14th Amendment says. But this is how the Supreme Court created a new "right" to abortion. In Roe v. Wade (Jan. 22, 1973), the Court held that the Due Process Clause, combined with incorporation doctrine, invalidates all State laws prohibiting abortion. You can read the Constitution 100 times and you will still not find any mention of abortion in it, but the U.S. Supreme Court, by a 7-2 vote, declared that there is a constitutional right to abortion. This is an example of "judicial activism," where the Court went beyond merely interpreting the law, in order to create a new law. In the four decades since Roe v. Wade was decided, the 7 votes in support of abortion on the U.S. Supreme Court has declined to only 4 or 5 votes, and many expect that eventually the Court will overturn its Roe v. Wade decision. If that happens, then States could again prohibit abortion, as they had done prior to 1973.

15th Amendment

The 15th Amendment ensures the right of everyone to vote, no matter what their race or ethnicity is (the 19th Amendment extended that right to all women). Congress has exercised its 15th Amendment authority in passing the Voting Rights Act of 1965.

17th Amendment

When the U.S. Constitution was ratified, and throughout the 1800s, State legislators selected the U.S. Senators who would represent them. But the 17th Amendment shifted that power to the people, in direct elections, as part of the "progressive movement" that increased the level of democracy in the United States.

22nd Amendment

President George Washington set the "precedent" (an example that is so strong that it becomes the rule) that American presidents should stay in office for only two terms, and then resign so that power can shift to someone new. But Democratic President Franklin Delano Roosevelt, hungry for power, broke the precedent and was elected to four terms, eventually dying in office from an illness (probably from melanoma, which is better treated today). A few years later the Republican-controlled Congress passed (by a 2/3rd vote) term limits for the office of president, and 3/4 of the State legislatures ratified this Amendment, to prohibit a president who has served two full terms from being elected again. This prevents a president from trying to grab too much power for too long.

Term Limits?

Thomas Jefferson criticized two aspects of the original Constitution: he thought it should have a Bill of Rights, and he felt there should be term limits for the office of president. The original Constitution does not include any limits on the number of terms that a president or a congressman may remain in office. The idea of term limits was considered, but rejected, by the Framers.

As mentioned above, President George Washington established a precedent for the president to serve only two terms, and then voluntarily leave office by not seeking a third term. That custom was followed for nearly 150 years, until Democrat President Franklin Delano Roosevelt broke it by running for a third term in 1940. The Republican landslide in the congressional elections of 1946 enabled passage of the 22nd Amendment to the Constitution, which limits a president to only two consecutive full terms. It was quickly ratified by the States and is perhaps the single best addition to the original Constitution after the First Amendment protection of freedom of speech.

There are still not any term limits for members of the House of Representatives or U.S. Senate. They may hold power as long as they like, sometimes as long as 50 years. In the late 1980s and 1990s, a movement sought to establish term limits for congressmen and senators. A few States passed their own laws limiting how long a congressman from that State could remain in office. But in a 5-4 decision by the U.S. Supreme Court, term limits for members of Congress was held to be unconstitutional, in U.S. Term Limits, Inc. v. Thornton (1995). The Supreme Court reasoned that the Constitution does not establish limits on terms for congressmen, and thus term limits could not be imposed by individual States.

The only way to limit the number of terms an individual can serve in Congress is by passing another constitutional amendment, which of course is very difficult to do. No new constitutional amendment has passed by the 2/3rd vote required in Congress in nearly 40 years.[1]

There have been only 27 amendments to the U.S. Constitution in more than 200 years. After the Bill of Rights, there have been only 17 amendments—less than an average of one every decade. Some of the amendments have not have much lasting significance, such as the 18th amendment (Prohibition on alcohol), which was later repealed by the 21st amendment.

But the federal court system, also known as the federal judiciary, has been changing the Constitution in its interpretation of it. With every new case that is decided by the federal courts, it is a new opportunity for the courts to reinterpret the Constitution and change its meaning.

Judicial Review

In the case of Marbury v. Madison (1803), the U.S. Supreme Court asserted the power of "judicial review," which is the power of the (federal) courts to determine whether a law passed by Congress is constitutional. Writing the decision for the Supreme Court, Chief Justice John Marshall held that “It is emphatically the province and duty of the judicial department to say what the law is.”

The case arose because President John Adams had appointed a bunch of new federal officers after Adams had been defeated in the presidential election of 1800, but before the incoming President Thomas Jefferson was sworn into power. These appointments were members of Adams' defeated "Federalist Party," opposed to the views of the "Democratic-Republican Party" which had won the election. Jefferson was furious that Adams had thwarted the will of the people in this manner.

The view of Jefferson and the Democratic-Republican Party was that federal courts should be limited in power, and that the other branches of government (legislative and executive) had co-equal power to interpret the Constitution. High-ranking federal officials in all three branches of government, not merely the judiciary, take a vow to honor and uphold the Constitution.

Once president, for example, Thomas Jefferson instructed his Attorney General not to enforce the Alien and Sedition Acts, which were supported by the Federalist Party and signed into law by President John Adams. President Jefferson viewed the laws as being in violation of the First Amendment. Some courts had held the laws to be constitutional, but President Jefferson felt (correctly) that the laws were not constitutional, and he exercised his independent authority when leader of the Executive Branch not to enforce these particular laws.

Decision in Marbury v. Madison

The issue before the Supreme Court was whether a portion of the Judiciary Act of 1789 was constitutional. If a law is unconstitutional, then it cannot be enforced.

The result in Marbury v. Madison was that the U.S. Supreme Court grabbed for itself the power to invalidate laws of Congress as unconstitutional. This is known as the principle of “judicial review.” The decision expanded the relative power of the Supreme Court with respect to Congress. It does not affect federalism, because the States were not involved.

The facts of the case concerned a dispute over whether the incoming President Thomas Jefferson would recognize and honor a last-minute appointment made by the defeated President John Adams during his final days in office. In March 1801, about four months after Adams had been defeated by Jefferson in the 1800 presidential election, President Adams appointed William Marbury to the position of Justice of the Peace in the District of Columbia. Then, as now, the District of Columbia was under the control of the federal government. The incoming Secretary of State in the new Administration of Thomas Jefferson (who was James Madison) refused to honor the appointment by declining to deliver the commission (salary) to Marbury. He had to sue to ask the Supreme Court to order Madison to deliver the commission (in other words, Marbury was seeking payment of a salary to him by the government).

In a clever approach that would be used again in other key cases by the Supreme Court, it grabbed power for itself in a way that did not anger another branch of government. The Court held in favor of James Madison (and the Executive Branch), by declaring the part of the law on which Marbury depended to be unconstitutional. So the Supreme Court gave the victory in the case to the side of Thomas Jefferson, but based on reasoning that expanded the power of the federal judiciary (to which Jefferson was very much opposed). It is like saying, "you win now, but based on a reason that will cause you to lose in the future!"

This was the first time that the Supreme Court ruled that part of an act of Congress was unconstitutional. The Supreme Court did not declare another federal law to be unconstitutional until the Dred Scott decision in 1857, but by the 1900s the Court was ruling that many laws were unconstitutional.

Thomas Jefferson's views on judicial review

President Thomas Jefferson strongly opposed a powerful federal court system, and even attempted (unsuccessfully) to remove through the impeachment process Samuel Chase from the Supreme Court. In 1804, a year after Marbury v. Madison was decided, Jefferson wrote:[2]

The Constitution ... meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.

Thomas Jefferson is considered to be one of the more intelligent presidents in American history. Central to his political philosophy was his view that federal courts should not have any special power to interpret the Constitution, and federal courts should not have powers that are over and above the authority and responsibility of the other branches. In 1815, well after Thomas Jefferson had completed his two terms as president, he wrote the following:[3]

The question whether the judges are invested with exclusive authority to decide on the constitutionality of a law has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the Constitution which has given that power to them more than to the Executive or Legislative branches.

In another letter written by the former President Jefferson in 1820, he said:[4]

To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.

Here are three additional quotations from the former President Jefferson on the topic of judicial review:

In denying the right [the Supreme Court usurps] of exclusively explaining the Constitution, I go further than [others] do, if I understand rightly [this] quotation from the Federalist of an opinion that 'the judiciary is the last resort in relation to the other departments of the government, but not in relation to the rights of the parties to the compact under which the judiciary is derived.' If this opinion be sound, then indeed is our Constitution a complete felo de se [act of suicide]. For intending to establish three departments, coordinate and independent, that they might check and balance one another, it has given, according to this opinion, to one of them alone the right to prescribe rules for the government of the others, and to that one, too, which is unelected by and independent of the nation. For experience has already shown that the impeachment it has provided is not even a scare-crow ... The Constitution on this hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.

This member of the Government was at first considered as the most harmless and helpless of all its organs. But it has proved that the power of declaring what the law is, ad libitum, by sapping and mining slyly and without alarm the foundations of the Constitution, can do what open force would not dare to attempt.

My construction of the Constitution is ... that each department is truly independent of the others and has an equal right to decide for itself what is the meaning of the Constitution in the cases submitted to its action; and especially where it is to act ultimately and without appeal.

Other Early Supreme Court Decisions

In McCulloch v. Maryland (1819), the Supreme Court decided a dispute between the federal government and the State of Maryland. Guess which side the Supreme Court ruled in favor of? Predictably, the Supreme Court held in favor of the federal government, as the Supreme Court itself is part of the federal rather than state system. The Court held that the Necessary and Proper Clause of the Constitution gives Congress broad powers. The States cannot interfere with a law passed by Congress. (In this case, Maryland tried to tax the national bank operating within its State. The Court voided the tax.)

This expansion of federal power by the Supreme Court (and the lower federal courts) continued for the following 170 years, until the late 1980s.

In Gibbons v. Ogden (1824), the Supreme Court interpreted the Commerce Clause to include virtually any business activity between two or more states. This greatly reduced the power of States to regulate commerce.

Now, an enormous amount of federal legislation (by Congress) is justified based on the Commerce Clause. For example, civil rights legislation banning discrimination in places of public accommodation (e.g., hotels, restaurants, trains, airplanes) is based in the Commerce Clause. This was upheld in Heart of Atlanta Motel v. United States (1964). Since almost anything affects commerce, it is difficult to find many limits on federal power anymore.

One limit that does still exist is in family law. It remains outside the reach of the federal government. Education has also been beyond federal power, but the federal law entitled "No Child Left Behind" (2002) greatly expanded federal influence in this area. Most types of crimes, including most murders, are still beyond federal power. States alone can prosecute them, unless state lines were crossed during the commission of the crime.

Chief Justice John Marshall, who presided at the U.S. Supreme Court for 35 years between 1801 and 1836, wrote only one dissent during his entire tenure there. That was in the decision of Ogden v. Saunders (1827), in which the U.S. Supreme Court limited application of the U.S. Constitution and its Obligation of Contract Clause to state laws. Chief Justice Marshall was in favor of greater federal power and he opposed power in the hands of the States, so he dissented from the decision by the Court.

The Court's decision in Ogden v. Saunders declined to apply the Obligation of Contract Clause against prospective or future contracts. This caused an expansion in regulation of contracts by States without limitation by the Constitution. It was not until after the Civil War that the Supreme Court began to interpret the Constitution to place some limitations on regulations by States, such as interpreting the Commerce Clause to prohibit state regulation of interstate commerce.

Types of Federalism

This is a good time to review various forms of national government:

unitary system: national government has all the power. Examples: England, France and Italy.
co-federal system: states have all the power. Examples: colonies under Articles of Confederation.

In between these systems is the federalism unique to our Constitution. For legal, political and economic reasons, the system has changed over the years:

dual federalism (1788-1932): limited federal government no stronger than the states. Each has its own separate authority. Not much cooperation between the two. Examples: federal government runs the mail routes, state government runs the police.
cooperative federalism (1932-1965): responsibilities of federal and state government are mixed. Exclusive state power erodes.
centralized federalism (1965-1972): federal government asserts its power in cities, health care, schools, etc., with large spending programs under President Johnson’s Great Society. Also known as “creative federalism.”
new federalism (1972-today): conservative movement to return power and money back to the States, away from the federal government.

Which do liberals prefer? A larger, more powerful federal government. Which do conservatives prefer? A smaller, more limited federal government.


Answer any six out of the following seven questions:

1. Which protection of criminal defendants in the Bill of Rights do you think is most important, and why?

2. What did Marbury v. Madison establish, and what is your view of it?

3. What was Thomas Jefferson's view of the power of the federal judiciary? Include a discussion, with your opinion, of one of his quotations on the issue.

4. What is your view of term limits? Include in your answer where there is term limits in the federal government, and where there is not.

5. How broadly do you think the Eighth Amendment should be applied in prohibiting "cruel and unusual punishment"?

6. What is "incorporation doctrine"? Discuss.

7. Explain and discuss the "Equal Protection Clause" or the "Due Process Clause." Do they apply to non-governmental entities, such as churches?


Answer any two of the following three questions:

8. Discuss different types of federalism, and explain your view of how important federalism is to freedom.

9. Explain and discuss either the "Equal Protection Clause" or the "Due Process Clause" (without repeating your answer, if any, to question 7).

10. Select an early decision by the U.S. Supreme Court, other than Marbury v. Madison, on the issue of the power of the federal judiciary, and explain it.


  1. Examples of amendments that were added to the Constitution in the second half of the 20th century include the 23rd Amendment (electors for the District of Columbia), the 24th Amendment (banning of poll taxes), and the 26th Amendment (lowering voting age to 18 in all elections).
  2. Letter from Thomas Jefferson to Abigail Adams, 1804.
  3. Letter from Thomas Jefferson to W. H. Torrance, 1815.
  4. Letter by Thomas Jefferson to William C. Jarvis, 1820.
  5. Letter from Thomas Jefferson to Spencer Roane, 1819.
  6. Letter from Thomas Jefferson to Edward Livingston, 1825.
  7. Letter from Thomas Jefferson to Spencer Roane, 1819.