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CHAPTER 2: CONSTITUTIONCHAPTER 2: CONSTITUTION
UNIVERSITY OF TOLEDO LEGAL AND ETHICAL ENVIRONMENT OF BUSINESS Cohen
Preamble
Constitution as a Foundational Document
Main Body – Articles I - VII
Bill of Rights
Constitutional Amendments XI – XXVII
Critical Thinking Questions
Judicial Review
The Commerce Clause
Research Question
Critical Thinking Question
Police Power and “Health, Safety and Welfare”
Critical Thinking Challenge
Case 2
Class Discussion
PREAMBLE
" “We the People of the United States, in Order to form a more perfect Union, establish Justice,
insure domestic Tranquility, provide for the
common defence[1] promote the general
Welfare, and secure the Blessings of Liberty to
ourselves and our Posterity, do ordain and
establish this Constitution for the United States
of America. " Constitution as a Foundational Document The Commerce Clause Police Power and “Health, Safety and Welfare” Equal Protection, Substantive Due Process and Procedural Due Process
CONSTITUTION AS A FOUNDATIONAL DOCUMENT This chapter examines the U.S. Constitution and its impact on our society and business from a legal standpoint. A complete transcript of the document is provided in Appendix A with the constitutional amendments and Bill of Rights in Appendix B. This section however re�ects on the Constitution as the cornerstone for the creation of a federal government and the admission of the states into the union. The Constitution, which went through several drafts by the Confederation Congress[1], created our nation as it
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currently legally exists, the system of governmental checks and balances between the executive, legislative, and judicial branches of government. The founding document also provided certain inalienable freedoms to its citizenship that were guaranteed through the Bill of Rights as well as providing control of interstate commerce to the federal government, among other things.
Main Body – Articles I - VII The U.S. Constitution has seven original articles that comprise the main body of the document. Article I of the Constitution created the bicameral form of government, dividing Congress into two bodies, the House of Representatives and the Senate, and how these legislators were elected and passed laws. Article II of the Constitution created the executive branch of the government whereby executive “Power” vested in the o�ce of the President. Article III of the Constitution created the Supreme Court, whereby the judicial power of the United States resides. Based on the alignment and numbering of the Articles, the Founding Fathers determined that the interaction of the competing in�uencers in the balance of powers, Legislative (Congress), Executive (President), and Judicial (Supreme Court), were the most important in the document. In addition, the federal government exercises much of its power over the states through Article IV and Article VI, which vests control of interstate commerce to the federal government and makes federal laws – the law of the lands, respectively. Through this constitutional lens, the federal government controls the states and ultimately creates policies that shape the nation’s commercial and social landscape.
U.S. CONSTITUTION
ARTICLE #
NAME IMPACT SECTIONS
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U.S. CONSTITUTION
Article I Legislative Branch
Bi-cameral Congress, House and Senate
10
Article II Executive Branch
President and Vice President with 4 year term, Voting Process
4
Article III Judicial Branch
Supreme Court, Supreme Court powers, Treason
3
Article IV Interstate Relationships
States recognize laws, citizens, and new states admitted by Congress, Federal protection given to all states
4
Article V Constitutional Amendments
Developed pathway for amending constitution
1
Article VI Supreme Law of the Land
U.S. took debts of old government, Constitution of Supreme Law, Religion is not required for Government
1
Article VII;
Constitution Rati�cation
9 states required for Constitution to be rati�ed for all
1
Table 2.1: Articles and Titles for U.S. Consitution, Ratified June 21, 1788,
Effective January 1, 1789
Bill of Rights Article V of the Constitution provides the framework for constitutional change, known as amendments. The �rst ten amendments to the U.S. Constitution, collectively known as the Bill of Rights, were the �rst amendments to formerly undertake this amendment process. The Bill of Rights original draft as presented to Congress for
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approval by James Madison included 12 draft articles. Congress thereby submitted the 12 draft articles to the states for rati�cation and articles 3 through 12 passed, becoming the �rst ten amendments to the Constitution. The ultimate purpose of these �rst ten amendments was to guarantee certain personal freedoms to citizens to put some limits on federal power over persons and states. The amendments however only applied to the federal government and it was not until the Fourteenth Amendment that these individual rights were thusly guaranteed by the “States”.
BILL OF RIGHTS
# NAME IMPACT
First Freedom of Speech
Freedom of speech, religion, association without threat of government restraint
Second Right to bear arms
Citizens have the right to own guns
Third Quartering Soldiers
No quartering of soldiers in private houses during times of peace or war
Fourth Right to Privacy
Protects citizens from unreasonable search and seizure of property
Fifth Self- Incrimination
Protection against double jeopardy, self-incrimination, and punishment without due process of law
Sixth Counsel Individuals accused of crimes have the right to counsel, the right to confront witnesses, and a speedy public trial
Seventh Trial by Jury Common law suits over twenty dollars have the right to trial by jury
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BILL OF RIGHTS
Eighth Cruel and Unusual Punishment
Right to bail, no unreasonable bail, forbids cruel and unusual punishment
Ninth Unenumerated Rights
Citizens have certain rights not mentioned in the Constitution
Tenth Reserved Power
Powers not delegated to the federal government are reserved for the states
Table 2.2: Bill of Rights – Only 10 of the 12 proposed amendments were
ratified.
Constitutional Amendments XI – XXVII The Constitution was intended to be modi�ed in the natural course and growth of the country’s democracy. The drafters of the Constitution recognized that society’s needs would change and therefore the Constitution itself would have to change with it. Several ways exist to pass an amendment to the Constitution: 1) an amendment draft receives two thirds approval from both houses and then that amendment is rati�ed by the legislatures of three fourths of the states, or 2) the states have a constitutional convention where two thirds of the states approve a draft amendment, and then that amendment is rati�ed by the legislatures of three fourths of the states. Many signi�cant societal changes have occurred through constitutional amendment, including abolition of slavery and woman’s su�rage.
CONSTITUTIONAL AMENDMENTS
# NAME IMPACT DATE RATIFIED
11 Sovereign Citizens cannot sue states in Federal Courts, in law or equity
2/7/1795
12 Presidential Election Laws
Re�ned the electoral college system
6/15/1804
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CONSTITUTIONAL AMENDMENTS
13 Abolition of Slavery
Slavery was abolished 12/6/1865
14 Naturalization All persons born or naturalized in U.S. are citizens
7/9/1868
15 Eliminated Racial Discrimination for Su�rage
States could not stop people from voting based on race
2/3/1870
16 Income Tax Income tax is levied by Congress
2/3/1913
17 Senatorial Elections
Direct election of senators
4/8/1913
18 Prohibition Alcohol is illegal 1/16/1919
19 Women's Su�rage
Woman can vote 8/18/1920
20 Lame Duck Amendment
Shortened time between election and inauguration
1/23/1933
21 Repealed Prohibition
Alcohol is legal 12/5/1933
22 Two Term Limit Presidents can only serve two terms
2/27/1951
23 Washington D.C. voting
Washington D.C. citizens can vote and have an electoral college
3/29/1961
24 No Poll Tax Prohibits poll tax in federal elections
1/23/1964
25 Presidential Succession
Created line of succession from President down
2/10/1967
26 Voting Age Legal voting age changed from 21 to 18
7/1/1971
27 Congressional Pay
Prohibits Congress from raising its salaries right before the next election
5/7/1992
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Table 2.3: Constitutional Amendments after Bill of Rights. Names in figure
are not necessarily common usage, for example, the 14 th
and 15 th
amendments are known as the reconstruction amendments as they were
adopted directly after the end of the civil war.
Critical Thinking Questions 1. If the U.S. Supreme Court ruled that gay marriage
was constitutionally protected, under what constitutional amendment would the states be required to grant gay marriage? (Answer: 14th Amendment guaranteeing equal protection to citizens by states)
2. Is there a constitutional clause that the federal government could use to require mandatory legalization of marijuana at the state level? What is that clause? Further, what constitutional amendment (concept) would the state’s use to argue against the federal mandate that each state legalizes marijuana? What does the government do when it wants to impose changes at the state level but lacks the constitutional authority to do so? (“Commerce Clause” Article 1. Section 8, Clause 3 of the Constitution, gives Congress the power to regulate interstate commerce; 10th Amendment – powers not enumerated to the federal government are retained by the states – health safety and welfare. The 10th amendment argument probably wins. The federal government would likely withhold state funding (e.g. road construction funds) in order to get the states to comply with this edict.)
Judicial Review Naturally, the Constitution and its amendments are not the only laws in the United States. Both Congress and state legislatures pass laws on an annual basis. Given the annual passage of laws, what
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happens when apparent or even hidden con�icts exist between these federal and state laws and the Constitution? Dating back to Marbury v. Madison (Cite Marbury v. Madison, 5 U.S. 137 the U.S. Supreme Court delivered an opinion on its ability to examine these con�icts. Chief Justice Marshall in his Marbury opinion, gave the foundation for the Supreme Court’s exercise of “judicial review”, writing, “….It is emphatically the province and duty of the Judicial Department to say what the law is. So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these con�icting rules governs the case. This is of the very essence of judicial duty. If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.” Even though the Supreme Court provided Madison and the newly elected President Thomas Je�erson the desired result by keeping Marbury out of his appointed post as granted by outgoing 2nd President John Adams, it came with a strong rebuke from President Je�erson:
" You seem to consider the judges as the ultimate arbiters of all constitutional questions;
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 power [is] 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
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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. " Thus, even back as far as 1803, the judicial, executive, and legislative branches of the government were �ghting over governance, authority, and how the separated powers coexisted, and the U.S. Constitution was less than 20 years old. Thus, as the politicians who actually drafted the document, in this case Je�erson, felt that the U.S. Constitution was being incorrectly interpreted by the Court at the time, citizens today should not be surprised about the battles involving the Constitution between current political leaders.
THE COMMERCE CLAUSE The “Commerce Clause” is the reference name for Article 1. Section 8, Clause 3 of the Constitution, which gives Congress direct authority over international and interstate commerce, speci�cally “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” Jurists, legal historians, and commentators occasionally separate the commerce powers into their distinct power classi�cations: Foreign Commerce Clause, Interstate Commerce Clause, and Indian Commerce Clause.
Research Question If Congress has the authority over Foreign Commerce and the President has the Treaty power (where is the Treaty power found?), then what does the President need to do to exercise his Treaty power over Congress’ Foreign Commerce power?
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Con�ict arises when citizens, corporations, or states believe that Congress has overstepped its enumerated legislative authority and embarks to create legislation which it is not constitutionally authorized to do. For example, in United States v. Alfonso Lopez, Jr.14 U.S. 549, young Lopez was charged with violating the federal Gun- Free School Zones Act of 1990 (the "Act"), 18 U.S.C. § 922(q) for bringing a gun to his high school for resale. Lopez’s counsel moved to dismiss the indictment stating that the Act was “unconstitutional as it is beyond the power of Congress to legislate control over our public schools”. The trial court denied the motion stating that law was within Congress’ well-de�ned constitutional authority to regulate activities in and a�ecting commerce, and the business of high schools...a�ects interstate commerce. Lopez was thusly convicted for violating the Act. Lopez appealed the decision in the United States 5th Circuit Court of Appeals, which reversed the trial court’s decision indicating that “(the Act) is invalid as beyond the power of Congress under the Commerce Clause[1].”[2] The Supreme Court agreed to hear the case after the United States government �led a petition of certiori. In a 5–4 decision with Chief Justice William Rehnquist writing for the majority, the Supreme Court held that “Possession of a handgun near school is not an economic activity that has a substantial e�ect on interstate commerce. A law prohibiting guns near schools is a criminal statute that does not relate to commerce or any sort of economic activity.” In coming to this conclusion, the Court weighed four (4) factors in determining whether Congressional legislation is a valid use of the Commerce Clause power to regulate “activities” that substantially a�ect interstate commerce:
1. Was the activity in question noneconomic or economic? Is the sale of a gun an economic activity? Yes.
2. Did the economic activity include interstate commerce – i.e. did Lopez’s gun move through interstate commerce (this is a factual issue and if not
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proven, one cannot assume)? Maybe the gun did go from one state to another, but the record does not re�ect any �nding that the gun moved through interstate commerce.
3. Whether there had been congressional �ndings of an economic link between guns and education? The record did not re�ect any congressional �nding that there was an economic link between guns and education.
4. How attenuated the link was between the regulated activity and interstate commerce? The regulated activity seems removed from interstate commerce.
The Court’s reasoning was simple and seemed to conclude that a gun in a high school is an inherently criminal activity and within the domain of state law enforcement as part of its “health, safety and welfare” mandate so judiciously expressed in the 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.”[3] As a result, Congress rewrote the Act which is now called the Gun Free School Zones Act of 1990 to provide the congressional record and include the necessary language that would allow the law to be enforceable under the Commerce Clause powers.
Critical Thinking Question Why would Congress not simply allow a state to police its own high schools for illegal gun activity and prosecute criminals under state statute?
POLICE POWER AND “HEALTH, SAFETY AND WELFARE” With signi�cant authority and power granted to the federal government through the U.S. Constitution, the states have a very limited area to create impactful
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legislation without crossing into federal legal lanes. However, states and local governments do have the right to make laws that regulate their communities and this is called the “police” power. The police power provides states and municipalities with the ability to create laws that promote the “health, safety and welfare” of their citizens. Examples of laws that fall under the police power would be local building codes or ordinances, such as local speed limits. When a law is created that does not promote the health, safety, and welfare of its citizens or community, then such law may be declared unconstitutional, at the state (states have constitutions) or federal level.
Critical Thinking Challenge The following case represents a state exercising its “police” power and that exercise comes in direct con�ict with the Constitution. Please note that the use of the term “police” is not a reference to the actual police who are responsible for protecting the citizenry; however, one of the powers granted to the states under “police” power is the ability to form police departments. Case 2. SUPREME COURT OF THE UNITED STATES: LAWRENCE ET AL. v. TEXAS 539 U.S. 558
Excerpts taken directly from publicly available �les. Holding: A Texas law classifying consensual, adult homosexual intercourse as illegal sodomy violated the privacy and liberty of adults to engage in private intimate conduct under the 14th Amendment. Texas state courts reversed and charges dismissed. Court Opinion: Justice Kennedy Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.
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The instant case involves liberty of the person both in its spatial and more transcendent dimensions.
I The question before the Court is the validity of a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct. In Houston, Texas, o�cers of the Harris County Police Department were dispatched to a private residence in response to a reported weapons disturbance. They entered an apartment where one of the petitioners, John Geddes Lawrence, resided. The right of the police to enter does not seem to have been questioned. The o�cers observed Lawrence and another man, Tyron Garner, engaging in a sexual act. The two petitioners were arrested, held in custody over night, and charged and convicted before a Justice of the Peace. The complaints described their crime as "deviate sexual intercourse, namely anal sex, with a member of the same sex (man)." App. to Pet. for Cert. 127a, 139a. The applicable state law is Tex. Penal Code Ann. § 21.06(a) (2003). It provides: "A person commits an o�ense if he engages in deviate sexual intercourse with another individual of the same sex." The statute de�nes "[d]eviate sexual intercourse" as follows: "(A) any contact between any part of the genitals of one person and the mouth or anus of another person; or "(B) the penetration of the genitals or the anus of another person with an object." § 21.01(1). The petitioners exercised their right to a trial de novo in Harris County Criminal Court. They challenged the statute as a violation of the Equal Protection Clause of the Fourteenth Amendment and of a like provision of the Texas Constitution. Tex. Const., Art.1, § 3a. Those contentions were rejected. The petitioners, having entered a plea of nolo contendere, were each �ned $200 and
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assessed court costs of $141.25. App. to Pet. for Cert. 107a-110a. The Court of Appeals for the Texas Fourteenth District considered the petitioners' federal constitutional arguments under both the Equal Protection and Due Process Clauses of the Fourteenth Amendment. After hearing the case en banc the court, in a divided opinion, rejected the constitutional arguments and a�rmed the convictions. 41 S.W. 3d 349 (Tex. App. 2001). The majority opinion indicates that the Court of Appeals considered our decision in Bowers v. Hardwick, 478 U.S. 186 (1986), to be controlling on the federal due process aspect of the case. Bowers then being authoritative, this was proper. We granted certiorari, 537 U.S. 1044 (2002), to consider three questions: "1. Whether Petitioners' criminal convictions under the Texas "Homosexual Conduct" law--which criminalizes sexual intimacy by same-sex couples, but not identical behavior by di�erent-sex couples--violate the Fourteenth Amendment guarantee of equal protection of laws? "2. Whether Petitioners' criminal convictions for adult consensual sexual intimacy in the home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment? "3. Whether Bowers v. Hardwick, 478 U.S. 186 (1986), should be overruled?" Pet. for Cert. i. The petitioners were adults at the time of the alleged o�ense. Their conduct was in private and consensual.
II We conclude the case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution. For this inquiry we deem it necessary to reconsider the Court's holding in Bowers… (Review of historical cases and cites regarding right of privacy see
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Griswold v. Connecticut, 381 U.S. 479 (1965), Eisenstadt v. Baird, 405 U.S. 438 (1972), Roe v. Wade, 410 U.S. 113 (1973), Carey v. Population Services Int'l, 431 U.S. 678 (1977)… This was the state of the law with respect to some of the most relevant cases when the Court considered Bowers v. Hardwick. The facts in Bowers had some similarities to the instant case. A police o�cer, whose right to enter seems not to have been in question, observed Hardwick, in his own bedroom, engaging in intimate sexual conduct with another adult male. The conduct was in violation of a Georgia statute making it a criminal o�ense to engage in sodomy. One di�erence between the two cases is that the Georgia statute prohibited the conduct whether or not the participants were of the same sex, while the Texas statute, as we have seen, applies only to participants of the same sex. Hardwick was not prosecuted, but he brought an action in federal court to declare the state statute invalid. He alleged he was a practicing homosexual and that the criminal prohibition violated rights guaranteed to him by the Constitution. The Court, in an opinion by Justice White, sustained the Georgia law. Chief Justice Burger and Justice Powell joined the opinion of the Court and �led separate, concurring opinions. Four Justices dissented. 478 U.S., at 199 (opinion of Blackmun, J., joined by Brennan, Marshall, and Stevens, JJ.); id., at 214 (opinion of Stevens, J., joined by Brennan and Marshall, JJ.). The Court began its substantive discussion in Bowers as follows: "The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time." Id., at 190. That statement, we now conclude, discloses the Court's own failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. The laws involved in
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Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. This, as a general rule, should counsel against attempts by the State, or a court, to de�ne the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects. It su�ces for us to acknowledge that adults may choose to enter upon this relationship in the con�nes of their homes and their own private lives and still retain their dignity as free persons. When sexuality �nds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice. Having misapprehended the claim of liberty there presented to it, and thus stating the claim to be whether there is a fundamental right to engage in consensual sodomy, the Bowers Court said: "Proscriptions against that conduct have ancient roots." Id., at 192. In academic writings, and in many of the scholarly amicus briefs �led to assist the Court in this case, there are fundamental criticisms of the historical premises relied upon by the majority and concurring opinions in Bowers. Brief for Cato Institute as Amicus Curiae 16-17; Brief for American Civil Liberties Union et al. as Amici Curiae 15-21; Brief for Professors of History et al. as Amici Curiae 3-10. We need not enter this debate in the attempt to reach a de�nitive historical judgment, but the following considerations counsel against adopting the de�nitive conclusions upon which Bowers placed such reliance. At the outset it should be noted that there is no longstanding history in this country of laws directed at
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homosexual conduct as a distinct matter… Laws prohibiting sodomy do not seem to have been enforced against consenting adults acting in private. A substantial number of sodomy prosecutions and convictions for which there are surviving records were for predatory acts against those who could not or did not consent, as in the case of a minor or the victim of an assault. As to these, one purpose for the prohibitions was to ensure there would be no lack of coverage if a predator committed a sexual assault that did not constitute rape as de�ned by the criminal law. Thus the model sodomy indictments presented in a 19th-century treatise, see 2 Chitty, supra, at 49, addressed the predatory acts of an adult man against a minor girl or minor boy. Instead of targeting relations between consenting adults in private, 19th-century sodomy prosecutions typically involved relations between men and minor girls or minor boys, relations between adults involving force, relations between adults implicating disparity in status, or relations between men and animals… The policy of punishing consenting adults for private acts was not much discussed in the early legal literature. We can infer that one reason for this was the very private nature of the conduct. Despite the absence of prosecutions, there may have been periods in which there was public criticism of homosexuals as such and an insistence that the criminal laws be enforced to discourage their practices. But far from possessing "ancient roots," Bowers, 478 U.S., at 192, American laws targeting same-sex couples did not develop until the last third of the 20th century. The reported decisions concerning the prosecution of consensual, homosexual sodomy between adults for the years 1880-1995 are not always clear in the details, but a signi�cant number involved conduct in a public place. See Brief for American Civil Liberties Union et al. as Amici Curiae 14-15, and n.18. It was not until the 1970's that any State singled out same- sex relations for criminal prosecution, and only nine States have done so. (Cites Ommitted). Post-Bowers even some of these States did not adhere to the policy of suppressing
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homosexual conduct. Over the course of the last decades, States with same-sex prohibitions have moved toward abolishing them. (Cites Ommitted). In summary, the historical grounds relied upon in Bowers are more complex than the majority opinion and the concurring opinion by Chief Justice Burger indicate. Their historical premises are not without doubt and, at the very least, are overstated. It must be acknowledged, of course, that the Court in Bowers was making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral. The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. "Our obligation is to de�ne the liberty of all, not to mandate our own moral code." Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 850 (1992). Chief Justice Burger joined the opinion for the Court in Bowers and further explained his views as follows: "Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is �rmly rooted in Judeao-Christian moral and ethical standards." 478 U.S., at 196. As with Justice White's assumptions about history, scholarship casts some doubt on the sweeping nature of the statement by Chief Justice Burger as it pertains to private homosexual conduct between consenting adults. See, e.g., Eskridge, Hardwick and Historiography, 1999 U. Ill. L.Rev. 631, 656. In all events we think that our laws and traditions in the past half century are of most relevance here. These references
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show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex. "[H]istory and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry." County of Sacramento v. Lewis, 523 U.S. 833, 857 (1998) (Kennedy, J., concurring). This emerging recognition should have been apparent when Bowers was decided. In 1955 the American Law Institute promulgated the Model Penal Code and made clear that it did not recommend or provide for "criminal penalties for consensual sexual relations conducted in private." ALI, Model Penal Code § 213.2, Comment 2, p.372 (1980)… In Bowers the Court referred to the fact that before 1961 all 50 States had outlawed sodomy, and that at the time of the Court's decision 24 States and the District of Columbia had sodomy laws. 478 U.S., at 192- 193. Justice Powell pointed out that these prohibitions often were being ignored, however. Georgia, for instance, had not sought to enforce its law for decades. Id., at 197- 198, n.2 ("The history of non-enforcement suggests the moribund character today of laws criminalizing this type of private, consensual conduct"). In our own constitutional system the de�ciencies in Bowers became even more apparent in the years following its announcement. The 25 States with laws prohibiting the relevant conduct referenced in the Bowers decision are reduced now to 13, of which 4 enforce their laws only against homosexual conduct. In those States where sodomy is still proscribed, whether for same-sex or heterosexual conduct, there is a pattern of non- enforcement with respect to consenting adults acting in private. The State of Texas admitted in 1994 that as of that date it had not prosecuted anyone under those circumstances. State v. Morales, 869 S.W.2d 941, 943. Two principal cases decided after Bowers cast its holding into even more doubt. In Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), the Court rea�rmed the substantive force of the liberty protected
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by the Due Process Clause. The Casey decision again con�rmed that our laws and tradition a�ord constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Id., at 851. In explaining the respect the Constitution demands for the autonomy of the person in making these choices, we stated as follows: "These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to de�ne one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not de�ne the attributes of personhood were they formed under compulsion of the State." Ibid. Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do. The decision in Bowers would deny them this right. The second post-Bowers case of principal relevance is Romer v. Evans, 517 U.S. 620 (1996). There the Court struck down class-based legislation directed at homosexuals as a violation of the Equal Protection Clause. Romer invalidated an amendment to Colorado's constitution which named as a solitary class persons who were homosexuals, lesbians, or bisexual either by "orientation, conduct, practices or relationships," id., at 624 (internal quotation marks omitted), and deprived them of protection under state antidiscrimination laws. We concluded that the provision was "born of animosity toward the class of persons a�ected" and further that it had no rational relation to a legitimate governmental purpose. Id., at 634. As an alternative argument in this case, counsel for the petitioners and some amici contend that Romer provides the basis for declaring the Texas statute invalid under the Equal Protection Clause. That is a tenable argument, but we conclude the instant case requires us to address
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whether Bowers itself has continuing validity. Were we to hold the statute invalid under the Equal Protection Clause some might question whether a prohibition would be valid if drawn di�erently, say, to prohibit the conduct both between same-sex and di�erent-sex participants. Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests. If protected conduct is made criminal and the law which does so remains unexamined for its substantive validity, its stigma might remain even if it were not enforceable as drawn for equal protection reasons. When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres. The central holding of Bowers has been brought in question by this case, and it should be addressed. Its continuance as precedent demeans the lives of homosexual persons. The stigma this criminal statute imposes, moreover, is not trivial. The o�ense, to be sure, is but a class C misdemeanor, a minor o�ense in the Texas legal system. Still, it remains a criminal o�ense with all that imports for the dignity of the persons charged. The petitioners will bear on their record the history of their criminal convictions. Just this Term we rejected various challenges to state laws requiring the registration of sex o�enders. Smith v. Doe, 538 U.S. 84 (2003); Connecticut Dept. of Public Safety v. Doe, 538 U.S. 1 (2003). We are advised that if Texas convicted an adult for private, consensual homosexual conduct under the statute here in question the convicted person would come within the registration laws of a least four States where he or she to be subject to their jurisdiction. (Cites Omitted). This underscores the consequential nature of the punishment and the state-sponsored condemnation attendant to the criminal prohibition. Furthermore, the Texas criminal conviction carries with it the other collateral consequences always following a conviction, such as notations on job application forms, to mention but one example.
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The foundations of Bowers have sustained serious erosion from our recent decisions in Casey and Romer. When our precedent has been thus weakened, criticism from other sources is of greater signi�cance. In the United States criticism of Bowers has been substantial and continuing, disapproving of its reasoning in all respects, not just as to its historical assumptions. (Cites Omitted). The courts of �ve di�erent States have declined to follow it in interpreting provisions in their own state constitutions parallel to the Due Process Clause of the Fourteenth Amendment. (Cites Omitted). To the extent Bowers relied on values we share with a wider civilization, it should be noted that the reasoning and holding in Bowers have been rejected elsewhere. The doctrine of stare decisis is essential to the respect accorded to the judgments of the Court and to the stability of the law. It is not, however, an inexorable command. Payne v. Tennessee, 501 U.S. 808, 828 (1991). In Casey we noted that when a Court is asked to overrule a precedent recognizing a constitutional liberty interest, individual or societal reliance on the existence of that liberty cautions with particular strength against reversing course. 505 U.S., at 855-856; see also id., at 844 ("Liberty �nds no refuge in a jurisprudence of doubt"). The holding in Bowers, however, has not induced detrimental reliance comparable to some instances where recognized individual rights are involved. Indeed, there has been no individual or societal reliance on Bowers of the sort that could counsel against overturning its holding once there are compelling reasons to do so. Bowers itself causes uncertainty, for the precedents before and after its issuance contradict its central holding. The rationale of Bowers does not withstand careful analysis. Dissenting opinion in Bowers JUSTICE STEVENS stated: "Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not
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a su�cient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce o�spring, are a form of "liberty" protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons." 478 U.S., at 216 (footnotes and citations omitted). JUSTICE STEVENS' analysis, in our view, should have been controlling in Bowers and should control here. Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled. The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. "It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter." Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual. Had those who drew and rati�ed the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold
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possibilities, they might have been more speci�c. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom. The judgment of the Court of Appeals for the Texas Fourteenth District is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Class Discussion:
1. What is Bowers v. Hardwick to this case?
2. What was the holding in Bowers v. Hardwick?
3. What happened to Bowers v. Hardwick as a result of the ruling in Lawrence v. Texas?
4. What are the main legal reason(s) that Lawrence won his petition?
5. Given the ruling in Lawrence, is any slippery slope created whereby historically private yet illegal acts might be made legal? What acts might those be and how could legal counsel argue that Lawrence apply?
EQUAL PROTECTION, SUBSTANTIVE DUE PROCESS AND PROCEDURAL DUE PROCESS As Lawrence ET AL. v. Texas suggests the Supreme Court goes to great lengths to justify abrogating police power of
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the state when rendering a decision. The Court struck down the Texas law against same sex sodomy as unconstitutional as written. In the Court’s opinion, aside from the historical perspective, the majority went to great lengths to discuss the role and importance of equal protection, substantive due process and procedural due process as it impacts our legal system and society.
Equal Protection Section 1 of the Fourteenth Amendment to the U.S. Constitution applies speci�cally to the states. In its words “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny any person within its jurisdiction the equal protection of the laws,” the Federal government has essentially told the States to treat people equally . In its application, “equal protection” has gone through a slow metamorphous. In Plessy v. Ferguson (1896), the Supreme Court allowed a Jim Crow law in Louisiana that mandated separate rail cars for blacks and whites. The primary emphasis from Justice Brown’s opinion was that the Equal Protection Clause was designed to create equality in civil rights but did not provide any guarantee in social rights. Some 50 years later, this ruling was turned on its head with Brown v. Board of Education (1954) (an aggregation of cases), where Chief Justice Warren wrote, “To separate [children in grade and high schools] from others of similar age and quali�cations solely because of their race generates a feeling of inferiority as to their status in the community that may a�ect their hearts and minds in a way unlikely ever to be undone.... We conclude that in the �eld of public education the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal.” And thus, “separate but equal” was ruled unconstitutional as the guiding driver of segregation. Over the years, the Supreme Court has developed an analysis to determine whether or not the state’s law can past constitutional scrutiny.
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EQUAL PROTECTION REVIEW BY THE COURTS
Rational Basis Review
Intermediate Scrutiny
Strict Scrutiny
State Action (Legislation)
Legislation creating disparate treatment, not generally related to individual classi�cations (e.g. business regulation)
Legislation creating disparate treatment, usually relating to quasi suspect classi�cations (e.g. gender, age)
Legislation creating disparate treatment relating to suspect classi�cations or fundamental rights (e.g. race, religion or freedom of speech/"advertising"
State Interest
Only needs to be legitimate state interest in the regulation. Can be merely conceivable - need not be
Must be genuine (not post hoc) and important (e.g. driving regs impacting the elderly)
State interest must be compelling
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EQUAL PROTECTION REVIEW BY THE COURTS
Law's Relation to that Interest
Law must be rationally related to the desired outcome
Must be substantially related
Must be necessary to achieve the purpose - must be "narrowly tailored"
Substantive and Procedural Due Process Substantive due and procedural due process are born out the language in both the Fifth and Fourteenth Amendment, speci�cally, “life, liberty, or property, without due process of law.” The distinction between substantive due process and procedural due process is fairly straightforward. Substantive due process protects individual fundamental rights from federal and state government infringement by putting the Court in between the two parties to determine if the governments reach has gone beyond its constitutional boundaries. Procedural due process simply provides the necessary process to undertake in order to hold the government to its constitutional limits.
Footnotes
1. Ironically, in the original, engrossed version of the Constitution, the word defense is spelled “defence,” which is the British spelling of the word.
2. Most notable drafters and signers of the Constitution included the likes of Alexander Hamilton, Ben Franklin, James Madison, and George Washington, U.S. National Archives.
3. Je�erson, Thomas. The Writings of Thomas Je�erson, Letter to William Jarvis (September 28, 1820). James Taranto, Leonard Leo (2004). Presidential Leadership. Wall Street Journal Books. ISBN 978-0-7432-7226-1. Thomas Je�erson (1830). Memoir, correspondence, and miscellanies, from the papers of Thomas Je�erson. Gray and Bowen. pp. 372–375.
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4. Note: Congress may not have the authority under the Commerce Clause, but it might have power to regulate guns in high schools under other powers not so discussed.
5. Citation: United States v. Alfonso Lopez, Jr. 514 U.S. 549; 115 S. Ct. 1624; 131 L. Ed. 2d 626; 1995.
6. http://www.gpo.gov/fdsys/pkg/GPO-CONAN- 1992/pdf/GPO-CONAN-1992-10-11.pdf
