The Peoples’ Constitution: The Top 10 Case (Part 2)

By Ben Lenhart

Over the 230-year history since the ratification of the Constitution in 1789, the Supreme Court has weighed in on many big issues, from free speech, abortion and discrimination to freedom of religion, gun rights, and the powers of the president.  Here is a list of ten of the most important Constitutional Cases of all time.

In Part 1, we looked at such foundational cases as Marbury v. Madison and Brown v. Board of Education. Here in Part 2, we look at several more recent cases including Roe v. Wade and the recent Heller case dealing with gun rights.

6. Roe v. Wade (1973)

Perhaps one of the most well-known of all Supreme Court cases, Roe is important for two reasons: First, Roe established a Constitutional right to abortion under certain circumstances. Second, and more interesting from a Constitution perspective, Roe found this right even though it is not mentioned by name in the Constitution. Rather, Roe relied on the idea that certain fundamental rights exist and are protected by the Constitution—such as the right to privacy or the right to travel— even though the Constitution does not identify them. This idea, referred to as “substantive due process,” is founded in the Constitution’s promise to not deprive any person of “life, liberty, or property without due process of law.”

Some argue that these fundamental rights are grounded in the essence of liberty, while others point to the Ninth Amendment, which says that “theenumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Both sources harken back to the famous line in our Declaration of Independence: “that all men are created equal, that they are endowed by their Creator with certain unalienable Rights . . .”

Relevance Today:Hated by some, cherished by others, Roe remains the legal bedrock for the right to abortion. But Roe also stands for the idea that the fundamental rights enjoyed by all Americans are not limited to those listed by name in the Constitution.

7. Brandenburg v. Ohio (1969)

With World War I raging, Congress passed several laws banning a wide range of speech, including statements criticizing the war effort or inciting scorn for the American form of our government. By simply expressing their political views, many people ran afoul of these laws and were given long jail terms. This approach was challenged when two of our greatest justices, Oliver Wendell Homes and Louis Brandeis, began questioning the wisdom of jailing people based only on their speech. How, they asked, could a nation that truly believed in free speech punish people merely for peacefully expressing their views, especially when there was no sign that the speech would lead to law violation. Holmes/Brandeis wrote a series of famous dissents sharply criticizing the Court for failing to protect speech. They demanded that the Court respect the sweeping command in the First Amendment: “Congress shall pass no law … abridging the freedom of speech.” The Brandenburg case (holding that a racist speech by the KKK was protected by the Constitution) was the culmination of a decades-long effort to strengthen the protection of speech, and represents the triumph, long after their deaths, of Holmes’s and Brandeis’s pro-speech position.

Relevance Today:Americans can justly be proud of the amazing strength and power of our freedom of speech. The Constitution protects our right to criticize, in the strongest possible terms, our leaders or their polices, as well as our right to propose new ideas (even if that means fundamental change).   This vibrant marketplace of ideas makes American stronger.   One need only read the news to see, sadly, that in many nations today, people are thrown in jail for exercising the very free-speech rights that we take for granted in America.

8. U.S. v Carolene Products (1938)

As obscure as Brown v. Board is famous, Carolene Products has one very important claim to fame: footnote 4. That footnote suggested that the Court should give extra careful review to laws harming members of “discreet and insular” minorities because those members may not always be able rely on the normal political process to protect their rights. Carolene Products gave birth to the idea of “strict scrutiny,” which the Court now applies to any law—federal, state or local—that seeks to legislate on the basis of race or ethnicity. Strict scrutiny means the Court will take a hard and skeptical look at such a law, and is usually means that the law will be struck down.

Relevance Today:Starting with Carolene Products, legal discrimination—that is, laws that discriminate on their face based on race—have been virtually eliminated from America. That is no small feat given the widespread use of Jim Crow laws and other blatantly discriminatory laws that existed in American well into the 20th century. (Affirmative action laws are an important exception in this area and will be discussed in a later article.)

9. District of Colombia vs. Heller (2008).

A seminal ruling on the meaning of the Second Amendment, Heller addressed the constitutionality a handgun ban in Washington, DC. The opinions—both majority and dissent—are amazing history lessons, and recount the hugely important role played by local militias around the time of Revolutionary War and the drafting of the Constitution. That history is critical to understanding the unusual text of the Second Amendment, which says: “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.” In a sharply divided 5 to 4 ruling, the majority held that the right to keep and bear arms was personal and was not limited to militia or military service. However, the majority also acknowledged that certain limitations on guns rights would be consistent with the Second Amendment, stating: “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Future courts now face the task of interpreting this language.

Relevance Today: Simply put, Heller is today the bedrock for the Constitutional right to private gun ownership in America.

10. United States v. Nixon (1974).

As the Watergate crisis deepened, President Nixon refused to turn over secret tape recordings that had been subpoenaed by a special prosecutor.  Nixon argued that, as President, he could ignore the subpoena because he had an absolute “executive privilege” covering his communications with his staff. An unanimous Court ruled against Nixon and ordered that he produce the tapes. The Court agreed that the President does enjoy an executive privilege, but that privilege is not absolute and must give way when necessary to provide access to important evidence that is not otherwise availed. This is all the more true when, as here, the evidence did not involve national security or sensitive diplomatic or military matters. Shortly after the ruling, Nixon resigned.

Relevance Today:The Nixon cases stands clearly for the principle that “no man is above the law.” While it will not do so lightly, the Court has ruled against the President on many occasions, and on host of issues, when if finds that the President’s actions are contrary to the Constitution or other laws.  Holding our President accountable to our laws sets America apart from many other nations, and is one of the most important ways that we protect the liberty of all Americans.

Conclusion. Many other cases could easily be included in this list, including Virginia Military Institute (gender equality); Citizens United (free speech); Plessy (separate but equal); Curtis Wright (foreign affairs); McCulloch (congressional power); Chadha (separation of powers), and NY Times v Sullivan (free speech and libel), just to name a few. A common thread runs through all of these cases: a profound commitment in America to the Constitution and to rule of law. What does this mean? While messy and never perfect, it means that every person and every institution is bound by the law. And it means that the Court stands above Congress and the President and acts as guardrails should they veer too far off course. As John Adams put it: “We are a nation of laws, not of men.”

Rudyard Kipling said the same thing in poetry:

“All we have of freedom, all we use or know—

This our fathers bought for us long and long ago.

Ancient Right unnoticed as the breath we draw—

Leave to live by no man’s leave, underneath the Law.”

Ben Lenhart

Ben Lenhart is a graduate of Harvard Law School and has taught constitutional law at Georgetown Law Center for more than 20 years. He lives with his family and lots of animals on a farm near Hillsboro.

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