“Constitutional Issues”have persisted over 225 years!

Constitutional IssuesGenerally concerned with

the question,

Can the government

do that?

Constitutional Analysis

❶

What does the constitution say?

❷

How have the courts interpreted and applied

the constitution in similar cases in the

past?

Can the government do that?

The Constitutionarticulates thepowers of the

governmentand

the limits on that power.

But,analyzing and

interpreting the constitution

can be complicated!

Can the government do that?

Obama’s Health Care Law

Can the federal government require all individuals to

either have health insuranceor pay a penalty fee?

US Supreme Court RulingYes,

the fee is equivalent to a tax,and the 16th Amendment in

the US Constitution empowers the federal

government to levy taxes.

National Federation of Independent Business v. SebeliusJune 28, 2012

Ruling: 5-4

Which government can do that?Federal v. State Authority

10th Amendment

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Which government can do that?Federal v. State Authority

Federal Government

has authority to regulate or ban

the possession, sale, or use ofof dangerous or harmful

substances.

State Governments

Have the authority to regulate the practice of medicine

within their states.

Who has authority over medical marijuana?

Commerce Clause

Article I, Section 8, Clause 3

The Congress shall have Power to regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes..

The Commerce Clause emerged as the Framers' response to the central problem giving rise to the Constitution itself: the absence of any federal commerce power under the Articles of Confederation. For the first century of our history, the primary use of the Clause was to preclude the kind of discriminatory state legislation that had once been permissible. Then, in response to rapid industrial development and an increasingly interdependent national economy, Congress “ushered in a new era of federal regulation under the commerce power.

Gonzales v. Raich 2005

Is it Constitutional?Can the government prohibit or regulate gun ownership

by individuals in the U.S. ?

US Constitution2nd Amendment

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

U.S. Supreme Court Decisions

• 2008: District of Columbia v. Heller

The Federal government may not ban an individual’s right to own guns.

• 2010: McDonald v. Chicago

State and Local governments may not ban an individual’s right to own guns.

Constitutional disputes and analysiswill never end!

A. The constitution, itself, changes

B. Societal values and conditions change

C. Judges change

A. The Constitution Changes

Can people own slaves?1789

The original U.S. Constitution acknowledged and permitted slavery.

• Article I, Sec 2 Enumeration Clause • Article 1, Sec 9 Importation Clause• Article 4, Sec 2 Fugitive Slave Clause

186513th Amendment

“Neither slavery nor involuntary servitude, except as a

punishment for crime whereof the party shall have been duly

convicted, shall exist within the United States, or any place

subject to their jurisdiction.”

A. The Constitution Changes

Who can vote?• Each state decides

who can vote.

• Originally, all states severely restricted the right to vote

• 1870; 15th A. Non-whites

• 1920: 19th A. Females

• 1964: 24th A. The Poor

• 1971: 26th A. 18-20 Year Olds

Can same-sex couples marry in CA?

• 1850-2003 Only heterosexual couples allowed to marry in CA• 2004 (Feb.) S.F. Mayor Gavin Newsom decided that the CA Constitution

provides gay couples the right to marry, so he ordered that gay couples be allowed to marry in S.F.

“A citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all

citizens.”

• 2004 (Aug) CA Supreme Ct. ruled Mayor Newsom acted beyond his authority, it annulled all the gay marriages that had been perfomed in S.F., and it agreed that it would consider the issue.

4,000 same-sex marriages were annulled or invalidated.

Can same-sex couples marry in CA?

• 2008 (May) CA Supreme Ct. ruled that denying same-sex couples the right to marry does violate the CA

Constitution» From June 16-November 5, 2008, roughly 12,000 same sex

couples were married in CA; they are still married.

• 2008 (Nov) CA voters passed Proposition 8 (52.5% to 47.5%) which amended the CA Constitution by adding:“Only marriage between a man and a woman is valid

or recognized in California.”

• 2009 CA Supreme Ct. ruled that denying same-sex couples the right to marry does not violate the CA Constitution

Can same-sex couples marry in CA?

• 2009 Two same sex couples sued CA in Federal Court, charging that Prop 8 violated the U.S. Constitution:

14th Amendment: “No State shall…deny to any person within its jurisdiction the equal protection of the

laws.”

• 2010 A U.S Federal Court appeals judge ruled that CA Prop 8 does violate the US Constitution’s right to “equal protection” of

the law, but he ruled that same-sex couples cannot start getting married until the issue is considered by a higher appeals court

• 2012 A U.S Federal Appeals Court ruled that CA Prop 8 violates the US Constitution’s right to “equal protection” of the the law.

August, 2013U.S. Supreme Court Refused to reconsider the

2012 ruling of the Federal Appeals Court

So, same sex marriage is now legal in California!

B. Societal Values Change

Can Black, Indian, Hispanic, Chinese, Japanese, and Filipino students be required to attend racially segregated schools?

14th Amendment: “No State shall…deny to any person within its jurisdiction the equal protection of the laws.”

1896Plessy v. Ferguson

Yes

1954Brown v. Bd. of Education

No

B. Societal Values Change

Religion and Prayer in the Public SchoolsAmendment 1: “Congress shall make no laws respecting the establishment of religion, or

prohibiting the free practice thereof”

Over time, the Supreme Court has ruled schools cannot:• Teach students a general Protestant religion and the King James Bible• Begin the school day wih a generic prayer to God• Begin the school day with a reading from various sacred texts• Begin the graduation ceremony with a prayer• Begin extracurricular events like football games with a team prayer• Begin the school day with a silent prayer• Post a copy of the Ten Commandments in the school library• Begin the school day with students reciting the Pledge of Allegiance?• Teach Creationism or Intelligent Design in Science classes?

• 1892 "I pledge allegiance to my Flag and the Republic for which it stands, one nation, indivisible, with liberty and justice for all.”

• 1923 "I pledge allegiance to the Flag of the United States of America and to the Republic for which it stands, one nation, indivisible, with liberty and justice for all.”

• 1954 "I pledge allegiance to the flag of the United States of America, and to the republic for which it stands, one nation under God, indivisible, with liberty and justice for all."

Evolution and CreationismAmerican Beliefs

C. Judges Change

Can states execute convicted criminals?Amendment 8

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

The US Supreme Court has ruled on Capital Punishment:• 1976: Death penalty does not violate 8th Amendment• 1986: States cannot execute the insane• 1989: States can execute minors under 18• 1989: States can execute the mentally retarded• 2002: States cannot execute the mentally retarded• 2005: States cannot execute minors under 18

C. Judges Change

Can the government limit the money that corporations and unions contribute to election campaigns?

• 1990 Yes• 2002 Yes• 2010 No

C. Judges Change

Can states deny a woman the right to choose to have an abortion?

1973

No

(Norma McCorvey sued Texas)

Roe v. Wade1973

The Court argued that the Constitution's First, Fourth, Ninth, and Fourteenth Amendments protect an individual's "zone of privacy" "zone of privacy" against state laws and cited past cases ruling that marriage, contraception, and child rearing are activities covered in this "zone of privacy." The Court then argued that the "zone of privacy" was "broad enough to encompass a woman's decision whether or not to terminate her pregnancy." This decision involved myriad physical, psychological, and economic stresses a pregnant woman must face.

C. Judges Change

Can states deny a woman the right to choose to have an abortion?

1973 2013 ?

No

X

X X

X

?

??

X

X

Constitutional Analysis

Can the Government Do That?

❶

What does the constitution say?

❷

How have the courts interpreted and applied

the constitution in similar cases in the

past?

Constitutional Analysis

Can the Government Do That?

Remains a living,

relevant,and extremely important

document.