Tag: Supreme Court

“Have To” History: United States vs. Nixon (1974)

~ Blue Cereal

NOTE: I’ve finally completed “Have To” History: Landmark Supreme Court Cases. The following is an excerpt from this work, inspired only by my love of sharing and having nothing to do with current events. (We work very hard in history education to make sure there’s as little connection as possible between what we cover in class and what’s happening in the real world around us. Otherwise – phone calls!) 

Stuff You Don’t Really Want To Know (But For Some Reason Have To) About U.S. v. Nixon (1974)

Three Big Things:

1. In 1972, five men working for the Nixon Administration were caught breaking into Democratic National Headquarters. Investigations revealed much wider-spread wrongdoing by the White House – and efforts by the President himself to cover it all up.

2. When it was revealed that the President recorded his conversations, the tapes were subpoenaed by Congress; Nixon refused, claiming “executive privilege.”

3. The Supreme Court ruled against the President, who resigned to avoid impeachment. “Watergate” became shorthand for all things corrupt, especially in reference to major political scandals.

President Nixon Looking SeriousBackground

President Nixon was a very naughty man. Or, at least, he did some very naughty things (and then lied about it).

Richard M. Nixon began his political career in the House of Representatives, where he served the 12th District of California from 1947 – 1950. In 1950 he successfully ran for one of the state’s two Senate seats, which he held until asked to be the running mate of Dwight D. Eisenhower in the Presidential Election of 1952. While Eisenhower focused on the positives – what he wanted to do for the country – Nixon handled the negatives, attacking opponents and criticizing Democratic policies. It was a successful strategy; Nixon became Vice President in 1953.

Nixon’s involvement in the Eisenhower Administration was much more active than had been typical with prior VPs. He chaired security meetings when the President was absent and interacted with foreign leaders around the world. Nixon was virulently anti-Communist, but surprisingly diplomatic and seemingly unflappable in the face of protests, violence, or other challenges from detractors. He served under President Eisenhower for eight years.

Nixon attempted to ride this momentum to his own administration in 1960 but lost to John F. Kennedy in one of the most famous elections of the 20th century. JFK was young, optimistic, handsome, and Catholic, while Nixon was, well… himself.  Nixon next sought the governorship of California in 1962, but again fell short. During his concession speech, Nixon’s frustration boiled over as he told the reporters that they wouldn’t “have Nixon to kick around anymore.” He was done with politics.

He probably meant it at the time, but it didn’t last long. Six short years later, in 1968, he was elected President.

President Nixon

By 1968, the Vietnam War was beginning to look to many Americans like nightmarish quagmire we remember today. The Civil Rights movement was in full swing but faced violence and ugly backlash with every success. JFK had been assassinated in 1963, Malcolm X in 1965, MLK in April of 1968, and Robert Kennedy – on his way to becoming the Democratic nominee for President – in June. These were days of sex and hippies and drugs and war protests, and while pop culture too often overlooks the many folks simply going to school or work and trying to live their daily lives as best they could, the nation was arguably in its most self-destructive phase since the Civil War.

When times are good, Americans want freedom. When things turn chaotic and dark, however, most people want structure. Decency. A return to “normalcy.” It was out of such times that Nixon re-emerged, promising to restore law and order. He appealed to the “silent majority” he believed still knew how to be proper Americans. His “southern strategy” played on white resentment of black progress and used thinly veiled nativism to secure the support of conservatives and a shaken middle class in whatever part of the country they resided.

It seems to have worked. Nixon won by a substantial majority of electoral votes and the Republican Party picked up seats in both the House and the Senate.

Nixon’s victory did nothing to reduce his hostility towards the press, however. He blamed them for Kennedy’s victory eight years before. He was angry over the 1971 release of the Pentagon Papers which proved that President Lyndon B. Johnson had lied about the Vietnam War – not just a little, but a LOT, and not just to the public, but to Congress. (It wasn’t that Nixon felt particularly protective of Johnson; it was just inconvenient to deal with the resulting skepticism and heightened scrutiny of the office – particularly when trying to do shady, illegal things.)

It wasn’t just the press. He was paranoid about the Democratic Party, war protestors, and his own place in history as well. A covert group of trusted minions known as CREEP (the Committee to Re-Elect the President) engaged in a variety of illegal activities attempting to thwart Nixon’s many perceived enemies. They broke into offices, stole secrets, infiltrated opposition groups – whatever it took to enforce unquestioned loyalty with little regard for either decency or the law. As Nixon would later tell interviewer David Frost, “when the President does it, that means it’s not illegal.”

Clearly these were different times. We’re fortunate to have evolved so far beyond such things.

The Watergate Break-In

In June of 1972, a group of men known as “The Plumbers,” who worked for CREEP, broke into the Watergate Office Building which housed, among other things, Democratic National Committee Headquarters. It’s not clear specifically what they hoped to accomplish, but it seemed they might be looking to bug some phones and steal a few files. The break-in was reported the next day in the press, but considered relatively minor news at first. The White House denied all knowledge of or involvement in the effort.

Over time, however, persistent investigation and reporting – particularly that of Bob Woodward and Carl Bernstein at the Washington Post, began to uncover deeper shenanigans in and around the Oval Office. While Nixon had not necessarily ordered the break-in, he had clearly been involved in covering it up. The President used a strategy of repeated denials, constant misdirection, and hyperbolic accusations regarding the motives of his accusers to offset each new revelation. Eventually, the average American was both too numb to know what to believe and tired of hearing about it or trying to make sense of it. Nixon was re-elected easily in 1974, but the issue refused to die.

Eventually a Special Prosecutor was appointed (Archibald Cox) and the Senate began hearings into the break-in and related events. During these hearings, it was unexpectedly revealed that the President secretly recorded every discussion taking place in the Oval Office or on the Oval Office phone. “Hmm,” the Senate thought. “Those sure would be handy to have.” So, they subpoenaed the tapes.

Nixon at this point insisted that the Special Prosecutor to drop the investigation. He wouldn’t, so Nixon ordered his Attorney General to fire Cox. He refused, so Nixon accepted his resignation. He then ordered the Deputy Attorney General to fire Cox, with the same results. Finally, Nixon tried the Solicitor General, Robert Bork, at that point the Acting Attorney General. Bork fired Cox and kept his job, thus concluding the “Saturday Night Massacre.” (Bork was later nominated to the Supreme Court by President Reagan but could not secure Senate approval.)

Nixon tried to pacify Congress with heavily edited transcripts, summaries, and audio excerpts, but the Senate wanted it all. More and more, the public was beginning to agree. In 1974, the issue reached the Supreme Court.

United States v. Nixon (1974)

Attorneys for the President argued that the separation of powers as mandated by the U.S. Constitution meant the Judicial Branch lacked justiciability in this case, which was strictly between the President and Special Prosecutor – both members of the Executive Branch. In short, it was a family matter. The Court had no role.

Their slightly more plausible argument was that “executive privilege” protected the President from being forced to release the tapes. High level politicians, foreign leaders, and advisors must be able to speak with candor to the President, knowing their privacy would be protected. If high-level conversations were subject to public scrutiny, people would speak less openly and honestly. Politics would trump effective leadership.

Attorneys for the rest of the U.S. government argued that even if executive privilege did require some discretion as to what information could be made public, there was a nevertheless substantial state interest in a fair and complete criminal investigation. It wasn’t just the President; men were going to prison for their roles in the break-in, the cover-up, and whatever else was being revealed along the way. There was every reason to believe these tapes contained specific information related to the investigation; justice demanded their release.

In other words, they weren’t looking for launch codes or wanting to publish ‘behind-the-scenes” dirt on controversial foreign policy decisions. They wanted to know if there was a record of the President saying, “Let’s break the law and then cover it up” or “Hey, Dean – nice job on that felony offense!”

The Decision

In their unanimous decision, penned by Chief Justice Warren Burger, the Supreme Court ordered the President to turn over the tapes. They’d be listened to “in camera” – in chambers, privately, to determine which parts were relevant to the case without revealing state secrets or other privileged information to the public.

The “separation of powers” argument, it turned out, did not mean what the President’s attorneys wanted it to mean:

In designing the structure of our Government and dividing and allocating the sovereign power among three co-equal branches, the Framers of the Constitution sought to provide a comprehensive system, but the separate powers were not intended to operate with absolute independence.

While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.

Besides, the Chief Justice added, the issue was before the Court not in spite of the separation of powers, but specifically because of them. Quoting Chief Justice John Marshall’s opinion in Marbury v. Madison (1803), he concluded, “it is the duty of the courts to say what the law is.”

As to executive privilege, the Court acknowledged that the Executive requires some expectation of confidentiality. Military secrets, national security, difficult policy choices, all required the sort of blunt debate and absolute honesty impossible without it. But the President wasn’t claiming that national defense secrets were involved, or sensitive foreign policy choices, or complex policy debates. He was claiming a blanket right to operate in absolute isolation and without accountability. That, the Court said, is not how it works.

Aftermath

Twelve days later, the White House released the tapes. It was soon discovered that some sections had been erased, despite the Court’s order. The rest, however, provided more than enough damning information to eliminate any chance of Nixon surviving impeachment. A few days after the release of the tapes, the President resigned. Gerald Ford became President, and later pardoned Nixon.

Although Nixon lost his case, the Court’s decision in United States v. Nixon did acknowledge for the first time a degree of executive privilege. Numerous administrations since have made similar claims, looking to protect themselves in the name of protecting the country. At the same time, “Watergate” or anything with “-gate” tacked on to the end has become popular shorthand for any number of political scandals or controversies.

Roe v. Wade (1973) – Written Opinions {Excerpts}

~ Blue Cereal

I’ve recently been working on something I’m hoping other teachers might find useful for their own reference or for use in the classroom. It’s a compilation of a dozen or so of the most “Have To” Supreme Court cases in U.S. History – case summaries, excerpts from the majority opinions and periodically from dissents as well, and a few guiding questions over both the summaries and the opinion excerpts.

The goal is not breakthrough research on the cases themselves, but a practical guide for use by teachers as they see fit. None of us are experts on everything. Even the most informed among us have to stop and refresh our memory about any number of people and events as they arise, and unless you teach some form of American Government or Constitutional Law, that probably includes many of these landmark cases. More than that, I’ve found there to be a severe gap in existing resources – the “too basic to be engaging” variety in one pile and the “too detailed to be practical” flavors in the other.

“Have To” History: Landmark Supreme Court Cases looks to fill that gap. Plus, there’s all the money and glory that comes from posting curriculum on Teachers Pay Teachers or persuading some edu-publisher to roll the dice on you. Forget giving back or paying forward – deep down, this is about babes and bling.

I shared an “in progress” summary of Roe which is still a bit longer than I’d like, and I’m open to suggestions that don’t involve ideological outrage. Below are excerpts from the various written opinions, also too long at the moment but OH SO DIFFICULT to edit because theyr’e so fascinating! I haven’t written the guiding questions yet, and the final version will also include a single-page summary of the case and a single-page of excerpts from the majority opinion in order to give teachers greater flexibility depending on the level of their class and how much time they wish to devote to each case. A PDF is attached if you’d prefer reading it that way.

Excerpts from Roe v. Wade (1973), Majority Opinion by Justice Harry Blackmun

{Edited for Classroom Use – Subheadings Added for Clarity}

Introduction and Contextualization

We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One’s philosophy, one’s experiences, one’s exposure to the raw edges of human existence, one’s religious training, one’s attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one’s thinking and conclusions about abortion.

In addition, population growth, pollution, poverty, and racial overtones tend to complicate and not to simplify the problem.

Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and of predilection. We seek earnestly to do this, and, because we do, we have inquired into, and in this opinion place some emphasis upon, medical and medical-legal history and what that history reveals about man’s attitudes toward the abortion procedure over the centuries. We bear in mind, too, Mr. Justice Holmes’ admonition in his now-vindicated dissent in Lochner v. New York (1905):

[The Constitution] is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.

Justiciability

The usual rule in federal cases is that an actual controversy must exist at stages of appellate or certiorari review, and not simply at the date the action is initiated… But when, as here, pregnancy is a significant fact in the litigation, the normal 266-day human gestation period is so short that the pregnancy will come to term before the usual appellate process is complete. If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied. Our law should not be that rigid. Pregnancy often comes more than once to the same woman, and in the general population, if man is to survive, it will always be with us. Pregnancy provides a classic justification for a conclusion of nonmootness. It truly could be “capable of repetition, yet evading review.” (Southern Pacific Terminal Co. v. ICC, 1911)…

We, therefore, agree with the District Court that Jane Roe had standing to undertake this litigation, that she presented a justiciable controversy, and that the termination of her 1970 pregnancy has not rendered her case moot…

History of Abortion Laws in Western Culture

It perhaps is not generally appreciated that the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage. Those laws, generally proscribing abortion or its attempt at any time during pregnancy except when necessary to preserve the pregnant woman’s life, are not of ancient or even of common law origin. Instead, they derive from statutory changes effected, for the most part, in the latter half of the 19th century…

By 1840, when Texas had received the common law, only eight American States had statutes dealing with abortion. It was not until after the War Between the States that legislation began generally to replace the common law. Most of these initial statutes dealt severely with abortion after quickening, but were lenient with it before quickening… Gradually, in the middle and late 19th century, the quickening distinction disappeared from the statutory law of most States and the degree of the offense and the penalties were increased. By the end of the 1950’s, a large majority of the jurisdictions banned abortion, however and whenever performed, unless done to save or preserve the life of the mother… In the past several years, however, a trend toward liberalization of abortion statutes has resulted in adoption, by about one-third of the States, of less stringent laws…

It is thus apparent that, at common law, at the time of the adoption of our Constitution, and throughout the major portion of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect. Phrasing it another way, a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today. At least with respect to the early stage of pregnancy, and very possibly without such a limitation, the opportunity to make this choice was present in this country well into the 19th century. Even later, the law continued for some time to treat less punitively an abortion procured in early pregnancy…

Three reasons have been advanced to explain historically the enactment of criminal abortion laws in the 19th century and to justify their continued existence.

It has been argued occasionally that these laws were the product of a Victorian social concern to discourage illicit sexual conduct. Texas, however, does not advance this justification in the present case, and it appears that no court or commentator has taken the argument seriously…

A second reason is concerned with abortion as a medical procedure. When most criminal abortion laws were first enacted, the procedure was a hazardous one for the woman… Modern medical techniques have altered this situation… Mortality rates for women undergoing early abortions, where the procedure is legal, appear to be as low as or lower than the rates for normal childbirth… Moreover, the risk to the woman increases as her pregnancy continues. Thus, the State retains a definite interest in protecting the woman’s own health and safety when an abortion is proposed at a late stage of pregnancy.

The third reason is the State’s interest — some phrase it in terms of duty — in protecting prenatal life. Some of the argument for this justification rests on the theory that a new human life is present from the moment of conception. The State’s interest and general obligation to protect life then extends, it is argued, to prenatal life… In assessing the State’s interest, recognition may be given to the less rigid claim that as long as at least potential life is involved, the State may assert interests beyond the protection of the pregnant woman alone.

Parties challenging state abortion laws have sharply disputed in some courts the contention that a purpose of these laws, when enacted, was to protect prenatal life… {T}hey claim that most state laws were designed solely to protect the woman. Because medical advances have lessened this concern, at least with respect to abortion in early pregnancy, they argue that with respect to such abortions the laws can no longer be justified by any state interest… They claim that adoption of the “quickening” distinction through received common law and state statutes tacitly recognizes the greater health hazards inherent in late abortion and impliedly repudiates the theory that life begins at conception…

The “Right to Privacy”

The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment (Stanley v. Georgia, 1969); in the Fourth and Fifth Amendments (Terry v. Ohio, 1968, Katz v. United States, 1967, Boyd v. United States, 1886)… in the penumbras of the Bill of Rights (Griswold v. Connecticut, 1965); in the Ninth Amendment…; or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment (Meyer v. Nebraska, 1923). These decisions make it clear that only personal rights that can be deemed “fundamental” or “implicit in the concept of ordered liberty,” (Palko v. Connecticut, 1937), are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage (Loving v. Virginia, 1967); procreation (Skinner v. Oklahoma, 1942); contraception (Eisenstadt v. Baird, 1972); family relationships (Prince v. Massachusetts, 1944); and childrearing and education (Pierce v. Society of Sisters, 1925, Meyer v. Nebraska, 1923)

This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action… or… in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved…

On the basis of elements such as these, appellant… argue{s} that the woman’s right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree. Appellant’s arguments that Texas either has no valid interest at all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman’s sole determination, are unpersuasive. The Court’s decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. The privacy right involved, therefore, cannot be said to be absolute…

We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified, and must be considered against important state interests in regulation…
Where certain “fundamental rights” are involved, the Court has held that regulation limiting these rights may be justified only by a “compelling state interest” (Kramer v. Union Free School District, 1969, Shapiro v. Thompson, 1969, Sherbert v. Verner, 1963) and that legislative enactments must be narrowly drawn to express only the legitimate state interests at stake (Griswold v. Connecticut, 1965, Aptheker v. Secretary of State, 1964, Cantwell v. Connecticut, 1940)…

{In} recent abortion cases…, courts have recognized these principles. Those striking down state laws have generally scrutinized the State’s interests in protecting health and potential life, and have concluded that neither interest justified broad limitations on the reasons for which a physician and his pregnant patient might decide that she should have an abortion in the early stages of pregnancy. Courts sustaining state laws have held that the State’s determinations to protect health or prenatal life are dominant and constitutionally justifiable.
….

At What Point Should Government Step In to Protect the Unborn?

The Constitution does not define “person” in so many words. Section 1 of the Fourteenth Amendment contains three references to “person.” The first, in defining “citizens,” speaks of “persons born or naturalized in the United States.” The word also appears both in the Due Process Clause and in the Equal Protection Clause. “Person” is used in other places in the Constitution… But in nearly all these instances, the use of the word is such that it has application only post-natally. None indicates, with any assurance, that it has any possible pre-natal application.

All this, together with our observation, supra, that, throughout the major portion of the 19th century, prevailing legal abortion practices were far freer than they are today, persuades us that the word “person,” as used in the Fourteenth Amendment, does not include the unborn… This conclusion, however, does not of itself fully answer the contentions raised by Texas, and we pass on to other considerations.

The pregnant woman cannot be isolated in her privacy. She carries an embryo and, later, a fetus, if one accepts the medical definitions of the developing young in the human uterus… The situation therefore is inherently different from marital intimacy, or bedroom possession of obscene material, or marriage, or procreation, or education, with which Eisenstadt and Griswold, Stanley, Loving, Skinner, and Pierce and Meyer were respectively concerned. As we have intimated above, it is reasonable and appropriate for a State to decide that, at some point in time another interest, that of health of the mother or that of potential human life, becomes significantly involved. The woman’s privacy is no longer sole and any right of privacy she possesses must be measured accordingly.

Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception. We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer. It should be sufficient to note briefly the wide divergence of thinking on this most sensitive and difficult question… {but} the unborn have never been recognized in the law as persons in the whole sense.

In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake. We repeat, however, that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman, whether she be a resident of the State or a nonresident who seeks medical consultation and treatment there, and that it has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes “compelling.”

With respect to the State’s important and legitimate interest in the health of the mother, the “compelling” point, in the light of present medical knowledge, is at approximately the end of the first trimester. This is so because of the now-established medical fact… that, until the end of the first trimester mortality in abortion may be less than mortality in normal childbirth…

With respect to the State’s important and legitimate interest in potential life, the “compelling” point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb… If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.
Measured against these standards, {Texas laws} restricting legal abortions to those “procured or attempted by medical advice for the purpose of saving the life of the mother,” sweeps too broadly. The statute makes no distinction between abortions performed early in pregnancy and those performed later, and it limits to a single reason, “saving” the mother’s life, the legal justification for the procedure. The statute, therefore, cannot survive the constitutional attack made upon it here…

Summary and Clarification

To summarize and to repeat:

1. A state criminal abortion statute of the current Texas type, that excepts from criminality only a lifesaving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment.

(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.

(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.

(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.

2. The State may define the term “physician”… to mean only a physician currently licensed by the State, and may proscribe any abortion by a person who is not a physician as so defined…

This holding, we feel, is consistent with the relative weights of the respective interests involved, with the lessons and examples of medical and legal history, with the lenity of the common law, and with the demands of the profound problems of the present day. The decision leaves the State free to place increasing restrictions on abortion as the period of pregnancy lengthens, so long as those restrictions are tailored to the recognized state interests. The decision vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important state interests provide compelling justifications for intervention…

{The following footnotes, technically still part of the Majority Opinion as written by Justice Blackmun, are included not as essential elements of the decision but because they might be of interest to those who’ve read this far.}

Footnote 54. When Texas urges that a fetus is entitled to Fourteenth Amendment protection as a person, it faces a dilemma. Neither in Texas nor in any other State are all abortions prohibited. Despite broad proscription, an exception always exists. The exception contained in Art. 1196, for an abortion procured or attempted by medical advice for the purpose of saving the life of the mother, is typical. But if the fetus is a person who is not to be deprived of life without due process of law, and if the mother’s condition is the sole determinant, does not the Texas exception appear to be out of line with the Amendment’s command?
There are other inconsistencies between Fourteenth Amendment status and the typical abortion statute. It has already been pointed out… that, in Texas, the woman is not a principal or an accomplice with respect to an abortion upon her. If the fetus is a person, why is the woman not a principal or an accomplice? Further, the penalty for criminal abortion specified by Art. 1195 is significantly less than the maximum penalty for murder prescribed by Art. 1257 of the Texas Penal Code. If the fetus is a person, may the penalties be different?

Footnote 67. Neither in this opinion nor in Doe v. Bolton {a related case whose decision was announced on the same day}, do we discuss the father’s rights, if any exist in the constitutional context, in the abortion decision. No paternal right has been asserted in either of the cases, and the Texas and the Georgia statutes on their face take no cognizance of the father. We are aware that some statutes recognize the father under certain circumstances…

Excerpts from Roe v. Wade (1973), Concurring Opinion by Justice Potter Stewart

{Edited for Classroom Use}

“In a Constitution for a free people, there can be no doubt that the meaning of ‘liberty’ must be broad indeed.” (Board of Regents v. Roth, 1972) The Constitution nowhere mentions a specific right of personal choice in matters of marriage and family life, but the “liberty” protected by the Due Process Clause of the Fourteenth Amendment covers more than those freedoms explicitly named in the Bill of Rights…
As Mr. Justice Harlan once wrote:

[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This “liberty” is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment. (Poe v. Ullman, 1961, Dissenting Opinion)
…
In the words of Mr. Justice Frankfurter,

Great concepts like… “liberty”… were purposely left to gather meaning from experience. For they relate to the whole domain of social and economic fact, and the statesmen who founded this Nation knew too well that only a stagnant society remains unchanged. (National Mutual Ins. Co. v. Tidewater Transfer Co., 1949, Dissenting Opinion)

Several decisions of this Court make clear that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. (Loving v. Virginia, 1967, Griswold v. Connecticut, 1965, Pierce v. Society of Sisters, 1925, Meyer v. Nebraska, 1923, Prince v. Massachusetts, 1944, Skinner v. Oklahoma, 1942) As recently as last Term, in Eisenstadt v. Baird, we recognized the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.

That right necessarily includes the right of a woman to decide whether or not to terminate her pregnancy.

Certainly the interests of a woman in giving of her physical and emotional self during pregnancy and the interests that will be affected throughout her life by the birth and raising of a child are of a far greater degree of significance and personal intimacy than the right to send a child to private school protected in Pierce v. Society of Sisters (1925), or the right to teach a foreign language protected in Meyer v. Nebraska (1923).

Clearly, therefore, the Court today is correct in holding that the right asserted by Jane Roe is embraced within the personal liberty protected by the Due Process Clause of the Fourteenth Amendment.

Excerpts from Roe v. Wade (1973), Dissenting Opinion by Justice William Rehnquist

{Edited for Classroom Use}

I have difficulty in concluding, as the Court does, that the right of “privacy” is involved in this case. Texas, by the statute here challenged, bars the performance of a medical abortion by a licensed physician on a plaintiff such as Roe. A transaction resulting in an operation such as this is not “private” in the ordinary usage of that word. Nor is the “privacy” that the Court finds here even a distant relative of the freedom from searches and seizures protected by the Fourth Amendment to the Constitution, which the Court has referred to as embodying a right to privacy. (Katz v. United States, 1967).

If the Court means by the term “privacy” no more than that the claim of a person to be free from unwanted state regulation of consensual transactions may be a form of “liberty” protected by the Fourteenth Amendment, there is no doubt that similar claims have been upheld in our earlier decisions on the basis of that liberty. I agree with the statement of MR. JUSTICE STEWART in his concurring opinion that the “liberty,” against deprivation of which without due process the Fourteenth Amendment protects, embraces more than the rights found in the Bill of Rights. But that liberty is not guaranteed absolutely against deprivation, only against deprivation without due process of law. The test traditionally applied in the area of social and economic legislation is whether or not a law such as that challenged has a rational relation to a valid state objective…

The Due Process Clause of the Fourteenth Amendment undoubtedly does place a limit, albeit a broad one, on legislative power to enact laws such as this. If the Texas statute were to prohibit an abortion even where the mother’s life is in jeopardy, I have little doubt that such a statute would lack a rational relation to a valid state objective… But the Court’s sweeping invalidation of any restrictions on abortion during the first trimester is impossible to justify under that standard, and the conscious weighing of competing factors that the Court’s opinion apparently substitutes for the established test is far more appropriate to a legislative judgment than to a judicial one.

The Court eschews the history of the Fourteenth Amendment in its reliance on the “compelling state interest” test. . But the Court adds a new wrinkle to this test by transposing it from the legal considerations associated with the Equal Protection Clause of the Fourteenth Amendment to this case arising under the Due Process Clause of the Fourteenth Amendment. Unless I misapprehend the consequences of this transplanting of the “compelling state interest test,” the Court’s opinion will accomplish the seemingly impossible feat of leaving this area of the law more confused than it found it…

The decision here to break pregnancy into three distinct terms and to outline the permissible restrictions the State may impose in each one… partakes more of judicial legislation than it does of a determination of the intent of the drafters of the Fourteenth Amendment.

The fact that a majority of the States reflecting, after all, the majority sentiment in those States, have had restrictions on abortions for at least a century is a strong indication, it seems to me, that the asserted right to an abortion is not “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Even today, when society’s views on abortion are changing, the very existence of the debate is evidence that the “right” to an abortion is not so universally accepted as the appellant would have us believe.

To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment… By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion… Indeed, the Texas statute struck down today was, as the majority notes, first enacted in 1857, and “has remained substantially unchanged to the present time.”
…
For all of the foregoing reasons, I respectfully dissent.

Roe v. Wade (1973) – Draft from “Have To” History: Landmark Supreme Court Cases

~ Blue Cereal

This is an early draft of a chapter from “Have To” History: Landmark Supreme Court Cases. The final version is more concise and, I believe, a bit more clear.

“Have To” History: Roe v. Wade (1973)

Stuff You Don’t Really Want To Know (But For Some Reason Have To) About Tiananmen Square

Roe v. WadeThree Big Things:

1. Roe v. Wade (1973) established the right for women to have an abortion, at least at some stages of pregnancy, as part of a constitutionally implied “right to privacy.”

2. Roe codified a trimester approach to abortion’s legality, with legal guidelines shifting as a pregnancy progressed. (This was later modified to more specifically reflect the viability of the fetus at various stages.)

3. Roe is one of the best-known and most-debated cases in Supreme Court history, despite its efforts to anchor its findings in historical approaches to abortion in western culture and an only recently-discovered “right to privacy” in the U.S. Constitution.

Background

Norma McCorvey was 21-years old when she discovered she was pregnant with her third child in the summer of 1969. Her friends in Dallas suggested she claim to have been raped, believing (incorrectly) that this would allow her to get a legal abortion in Texas. (State law at the time only allowed abortion “for the purpose of saving the life of the mother.”) She soon rejected this strategy and attempted to secure an illegal abortion instead, but the facility she chose had been shut down by authorities before she could do so.

It was at this point that McCorvey met two attorneys fresh out of University of Texas Law School – Linda Coffee and Sarah Weddington. Together they filed a lawsuit claiming McCorvey’s constitutional rights were being violated by anti-abortion legislation which was vaguely framed and overly restrictive. Henry Wade was the District Attorney in Dallas at the time, so he was named as the defendant. The name “Roe” was a standard pseudonym (like “John Doe”) used for women whose identity was either unknown or who – as in this case – wished to avoid public scrutiny.

Abortion at this time was regulated (or prohibited) on a state-by-state basis. Most had laws restricting the circumstances in which abortion was legal, and many had banned it outright, generally with exceptions for saving the life of the mother. At the same time, the nation was just emerging from the 1960s, a time of expanded sexual freedom and a dramatic shift in what sorts of rights – including those related to sex or sexuality – the Supreme Court was willing to protect. While Chief Justice Earl Warren had retired just as McCorvey was learning about her third pregnancy, the impact of the Court under his tenure was still very much in play. There was little reason to expect dramatic shifts in judicial philosophy under the new Chief Justice, Warren Burger.

The Decision

The Court ruled 7 – 2 that the Texas law prohibiting all abortions was unconstitutional. They did not, however, embrace the argument that women should have unrestricted access to abortions; the state could limit the practice to some extent. The Majority Opinion, written by Justice Harry Blackmun, can be broken into five basic sections addressing the various issues involved:

1. Justiciability. Is this something the Supreme Court should even be ruling on? By the time the case came before the Supreme Court, Norma McCorvey had had her baby – she wasn’t pregnant any longer, and the Court doesn’t do “theoretical” cases. Was the issue “moot”?

“Pregnancy provides a classic justification for a conclusion of nonmootness,” Justice Blackmun wrote. Because of the unique nature of pregnancy, following typical procedures would mean that no woman could ever bring suit on an issue related to her pregnancy since the system moves too slowly. He cites a wonderful phrase from an otherwise unremarkable 1911 case, Southern Pacific Terminal Co. v. ICC: “It truly could be ‘capable of repetition, yet evading review.’” The Court could hear the case. 

2. History. Blackmun starts with abortion policies under the Greeks and Romans and follows the thread all the way into the 20th century. Limitations or prohibitions of the practice, he notes, were far from universal. Those which did exist generally attempted to distinguish between the fetus as part of the mother’s body and the fetus as distinct living entity by identifying the moment of “quickening” – the point in the pregnancy in which the child moved under its own apparent volition, thus demonstrating one of the defining features of “life.” Other times it was the moment of “animation” – the state at which the fetus starts to look more like a baby than a glob or a stomach tumor. Neither was particularly scientific, but the takeaway was that it mattered how developed a “potential life” seemed to be when creating legal restrictions on eliminating it.

Overall, Blackmun found relatively few legal limitations of any sort on abortion prior to the late-19th century. Even when pregnancies were ended in violation of existing statutes, penalties were mild, and almost never impacted the mother directly. In short, while abortion was discussed and somewhat debated prior to the 20th century, it was hardly the explosive source of controversy it had become.

3. The “Right to Privacy.” The First Amendment protects, among other things, an individual’s right to be left alone in matters of faith or their choice of friends. The Third protects the privacy of citizens’ homes from soldiers in need of a place to crash. The Fourth protects that same property, along with any private “papers and effects,” from search or seizure without a compelling and well-documented reason. The Fifth protects individuals from sharing anything they don’t wish to, even in their own trials, and introduces due process into any situation where the government wishes to limit individual freedom or take your stuff.
The Ninth Amendment specifies that just because an individual right hasn’t been addressed in the previous eight, that doesn’t mean it doesn’t exist. The Framers may not have codified your prerogative to dye your hair, to own ferrets as pets, or to privatize space flight, but (the Ninth suggests) you absolutely have those freedoms unless the government (including the judicial branch) finds legitimate reasons you don’t.

Then, of course, there’s the Fourteenth Amendment. It’s here the “right to privacy” is most often discovered:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

McCorvey’s team claimed that she was unable to get a “safe, legal” abortion because she could not afford to travel to where the procedure was allowed. The Texas statutes involved were “unconstitutionally vague” and violated her right of personal privacy as protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. She claimed to be suing not only for herself, but “on behalf of herself and all other women” similarly situated. The Court largely accepted this argument. Blackmun cites numerous precedents – none of which addressed abortion specifically, but all of which inferred some version of a “right to privacy” guaranteed by the Constitution. There’d been three particularly poignant examples in the decade leading up to Roe:

Griswold v. Connecticut (1965) – State restrictions on contraception were overturned based on the “zone of privacy” found in the First, Third, Fourth, Ninth, and Fourteenth Amendments, at least in reference to married couples. A few years later, Eisenstadt v. Baird (1972) extended this to unmarried couples as well. (In addition to laying the groundwork for Roe, Griswold would be cited decades later in cases decriminalizing various homosexual behavior and applying Fourteenth Amendment protections to same-sex couples.)

Loving v. Virginia (1967) – The Court declared unconstitutional a state law prohibiting marriage between citizens of different races. Their decision was founded on the Due Process protections of the Fourteenth Amendment. While less founded on “privacy” than other cases listed here, the Court’s decision did strengthen the idea that the government needed pretty strong justification for controlling private lives. (Not surprisingly, this one will also be cited a half-century later during arguments over same-sex marriages.)

Stanley v. Georgia (1969) – Individuals have the right to possess and view pornography in the privacy of their own homes. “If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch.”

4. Is the Fetus A “Person”?

The majority carefully avoided taking a spiritual, ethical, or even medical stand on this one. Blackmun instead explored the use of the term “person” in the Constitution and concluded that it does not include anyone or anything pre-natal. “Persons” run for office or endure servitude, both of which would require first being born. The Fourteenth Amendment defines “citizens” in terms of “persons born or naturalized in the United States.” Blackmun was quick to clarify, however, that just as the State had an obligation to consider a woman’s health and safety, it could also be legitimately concerned with “potential life.” That’s not quite on par with being a citizen, or even a person, but it certainly implies a legal status better than, say, an extra kidney.

5. The Trimester Plan

The Court rejected McCorvey’s claim to unrestricted abortion rights as well as Texas’s mandate that life begins and conception and must not be interfered with except in extreme cases. Blackmun and the majority instead implemented a three-trimester approach based on historical precedents and medical understanding circa 1973.

During the first trimester (roughly the first three months of pregnancy), decisions about abortion are left to the woman and her doctor. There’s insubstantial evidence of “potential life” or viability as traditionally understood – certainly not enough to override a woman’s “right to privacy” or to medical decisions about her own body. During the second trimester, the state may begin regulating abortion procedures to protect the mother’s health. The State at this point has acquired a “compelling interest” in the well-being of the mother. It is only during the third trimester, the point at which the smaller entity could conceivably live outside the womb, that the state has “compelling interest” in the “potential life” of the unborn child. This may be offset by concern for the mother’s life or well-being, but otherwise the State may prohibit abortion at this stage or not, as it sees fit.

Aftermath 

As in many decisions made by the Warren Court before it, the majority in Roe was criticized for moving beyond the role assigned to it by the constitution. Even supporters of abortion rights have at times expressed a desire for more substantive foundation than the reasoning offered therein. On the other hand, variations of “give it more time, let the legislature get there on its own” have become a bit clichéd whenever rights are extended to those not already in social or political power, be they pregnant women, people of color, or others. Often it simply means, “we’d prefer to keep stalling on this indefinitely.” 

The issue is not simply one of legal specifics, of course. For those who frame the issue in terms of a woman’s “right to choose,” abortion laws are one more example of the misogynistic, oppressive, blame-and-shame culture of the political right. The idea that the conservatives who generally support such limitations intend to protect women and children is perceived as self-evidently ludicrous and entirely inconsistent with the remainder of their dogma and political choices. “Pro-choice” advocates are quick to point out how many of those opposing abortion rights are old white men unlikely to become pregnant themselves, and who’ve historically opposed any threats to their elite status – women’s suffrage, labor unions, civil rights, etc. “They’re not pro-life, just pro-birth” is a succinct expression of this frustration and the inherent accusations thereof.

For those who genuinely believe that life begins at conception, however – especially if they’re under the impression this is specified in the Bible – the question of abortion is far more than the political fulcrum it’s often become. For “pro-life” proponents, arguments about separation of powers, judicial activism, or substantive due process only obscure the central question behind them all: “Is it OK to kill babies?” It has pushed many to become “single-issue voters,” accepting an array of positions with little or no relation to fetal viability in order to demonstrate their opposition to what they see as a horrific, unforgivable practice.

The issue continues to rise to the forefront of political and social debate from time to time and has arguably been used to both rally and outrage voters by both sides of the proverbial aisle. As of this writing, the decision in Roe has been periodically challenged and somewhat modified but has not been overturned. Its place in case law is by no means entirely secure, however. There are many still anxious to revisit the issue, usually in the name of validating universal bans of abortion regardless of circumstances. We’ll see what happens.

You Want to Sound REALLY Smart? (Related Jurisprudence and Legislation)

Doe v. Bolton (1973) – Decided at the same time as Roe, Doe clarified that in matters of determining the impact of pregnancy on the “health” of the mother, “the medical judgment may be exercised in the light of all factors – physical, emotional, psychological, familial, and the woman’s age – relevant to the well-being of the patient.” This gives doctors (and their patients) subjective leeway and has subsequently been cited in cases involving abnormalities revealed by prenatal screening,

Supreme Court nominees are regularly asked their thoughts on Roe during confirmation hearings, and while most refuse to discuss it in detail, it’s become something of a “litmus test” for both liberals and conservatives. It rarely guarantees anything related to the issue once appointed.

The Hyde Amendment – Passed by Congress in 1976, this prohibits the use of federal funding to pay for abortions, particularly through Medicaid. It was upheld by the Court in the 1980 case of Harris v. McRae and has been in effect ever since with periodic modifications. It’s still a hot topic whenever the issue of abortion comes up during political campaigns.

Webster v. Reproductive Health Services (1989) – A split Court (5–4) upheld several abortion restrictions and adjusted the trimester system in Roe to reflect improved medical technology. 

Planned Parenthood v. Casey (1992) – Another split Court (5–4) decision, involving an array of Pennsylvania statues not entirely banning abortion, but clearly making it difficult for women to access (a mandatory “waiting period,” parental consent for minors, permission slips from husbands, etc.). The Court invoked the standard of “undue burden” to uphold parts of the legislation while invalidating others. The Court also shifted the focus from trimesters to viability to accommodate medical progress.

Stenberg v. Carhart (2000) – Yet another 5-4 decision (see a pattern?), this one involved so-called “partial birth abortions,” a term which meant absolutely nothing medically but certainly stirred up imagery and emotions. The Court struck down attempts by Nebraska to ban these procedures because they did not meet the basic requirements of Roe or Casey. There was no exception for the life or health of the mother, and the prohibition included pre-viability pregnancies, despite the methods so labeled were often the safest for the mother during the second trimester. Nebraska’s legislation thus triggered the “undue burden” on women referenced in Casey.

Gonzales v. Carhart (2007) – Another “partial birth abortion” ban, this time by Congress itself, and another 5-4 decision, this time allowing the legislation banning the procedure. The Court accepted government arguments that the statue referred only to a specific procedure, not to all abortion, and thus did not create “undue burden” and did not require an exception for the life or health of the mother since other options remained available.

Whole Woman’s Health v. Hellerstedt (2016) – The Court in a 5-3 vote struck down Texas legislation imposing heightened requirements on abortion providers, finding they did little to increase safety or otherwise protect the mother but were mostly thinly veiled efforts to make it difficult to get an abortion – “undue burden.”

John Ross vs. the 1835 Treaty of New Echota (from “Well, OK Then…”)

~ Blue Cereal

NOTE: I’m revising and reorganizing much of the content from “Well, OK Then” as part of an overall effort to ‘clean up’ this site. This post is one of those newer, better versions of something previously shared.

Chief John Ross was a “mixed-blood” Cherokee who nevertheless became the best-known and arguably the most effective tribal leader of his generation. His supporters tended to lean traditional – they were conservative, and old-school – wanting little or no contact with whites and uninterested in their version of “progress.” 

Because he would not agree to voluntary removal, the U.S. found others in the tribe who would. They plied them with land and money and the argument that this was going to happen one way or the other – so they might as well make it as painless as possible. The signers of the Treaty of New Echota (1835) violated the most sacred of Cherokee laws while lacking the status to even speak for the tribe to begin with. 

Ross was not impressed, and wrote this to Congress on September 28th, 1836:

It is well known that for a number of years past we have been harassed by a series of vexations, which it is deemed unnecessary to recite in detail, but the evidence of which our delegation will be prepared to furnish…

{A} contract was made by the Rev. John F. Schermerhorn, and certain individual Cherokees, purporting to be a “treaty, concluded at New Echota, in the State of Georgia, on the 29th day of December, 1835, by {U.S. Commissioners} and the chiefs, headmen, and people of the Cherokee tribes of Indians.” A spurious Delegation, in violation of a special injunction of the general council of the nation, proceeded to Washington City with this pretended treaty, and by false and fraudulent representations supplanted in the favor of the Government the legal and accredited Delegation of the Cherokee people, and obtained for this instrument, after making important alterations in its provisions, the recognition of the United States Government. 

And now it is presented to us as a treaty, ratified by the Senate, and approved by the President, and our acquiescence in its requirements demanded, under the sanction of the displeasure of the United States, and the threat of summary compulsion, in case of refusal… 

Chief Ross knew his facts and his audience. He wastes little energy on extraneous issues or the details of past problems. He goes straight to what is essentially contract law – and accuses the U.S. of making a fraudulent deal. Abusing Indians might not have been all that un-American, but bogus contracts were certainly close. 

By the stipulations of this instrument, we are despoiled of our private possessions, the indefeasible property of individuals. We are stripped of every attribute of freedom and eligibility for legal self-defence. Our property may be plundered before our eyes; violence may be committed on our persons; even our lives may be taken away, and there is none to regard our complaints. We are denationalized; we are disfranchised. 

Ross doesn’t talk about the land, or his people’s culture, etc. He doesn’t badmouth the individuals who signed the Treaty of New Echota, beyond indicating they had no right to do so. 

He instead highlights elements of the situation which were more likely to resonate with his audience. After establishing the invalidity of the treaty, he argues that it violates their property rights. Few things were more sacred to real Americans. John Locke argued that protection of property – which he defined as “life, liberty, and estate” – was the sole function of government. Jefferson replaced “estate” with “pursuit of happiness,” but lest there be any confusion, the Fifth Amendment specifically defends “life, liberty, and property” from government intrusion without “due process.”

Which this, clearly, was not. 

Ross then throws in freedom (liberty), the right to defend yourself before the law, and personal safety. Those are the big three – life, liberty, and your stuff. They’re held together by the underlying assumption that such “natural rights” are every man’s refuge in a nation built on such ideals. 

It’s a brilliant approach. He has facts and reasoning on his side. Unfortunately, facts and reasoning weren’t going to decide this issue – the results were determined before he’d even bought his ticket. The U.S. was concerned only with rhetorical cover at this point. The Treaty gave them that – they knew damn well it wasn’t legitimate… they just didn’t care. 

Ross does speak to the ethical abhorrence of the situation, albeit briefly:

We are deprived of membership in the human family! We have neither land nor home, nor resting place that can be called our own. And this is effected by the provisions of a compact which assumes the venerated, the sacred appellation of treaty.

We are overwhelmed! Our hearts are sickened, our utterance is paralized, when we reflect on the condition in which we are placed, by the audacious practices of unprincipled men, who have managed their stratagems with so much dexterity as to impose on the Government of the United States, in the face of our earnest, solemn, and reiterated protestations.

Then, like a good five-paragraph essay, he repeats his main point by way of conclusion. 

The instrument in question is not the act of our Nation; we are not parties to its covenants; it has not received the sanction of our people. The makers of it sustain no office nor appointment in our Nation, under the designation of Chiefs, Head men, or any other title, by which they hold, or could acquire, authority to assume the reins of Government, and to make bargain and sale of our rights, our possessions, and our common country. 

And we are constrained solemnly to declare, that we cannot but contemplate the enforcement of the stipulations of this instrument on us, against our consent, as an act of injustice and oppression, which, we are well persuaded, can never knowingly be countenanced by the Government and people of the United States… 

{We} appeal with confidence to the justice, the magnanimity, the compassion, of your honorable bodies, against the enforcement, on us, of the provisions of a compact, in the formation of which we have had no agency.

It’s almost like he thinks governmental power is derived through the consent of the governed. “No removal without representation!”

Not really very catchy, I guess. 

Ross’s complaints would fall on deaf ears. The powers-that-be had already undermined Cherokee sovereignty via two Supreme Court cases. In the first one, Cherokee Nation v. Georgia (1831), the Court refused to hear the actual case – a complaint by the Cherokee that the State of Georgia kept passing laws which infringed on their guaranteed sovereignty within their own boundaries. The Court determined that the Cherokee certainly weren’t American citizens, but neither were they exactly a sovereign nation – at least not any more. Their relationship with the U.S. was like that of a “ward to its guardian.”

In other words, they were Dick Grayson to America’s Bruce Wayne. And they would never turn 18 in the eyes of the law. 

The second case was brought by a white guy – a missionary to the Cherokee by the name of Samuel Worcester.  Georgia had passed a law requiring non-Cherokee to get permission from the state before going onto Cherokee land – without bothering to include the Cherokee in the process. Worcester ignored the prohibition and kept doing his thing, and was arrested and jailed. In Worcester v. Georgia (1832), the Supreme Court declared that only the federal government could deal with the tribes – Georgia couldn’t do that.

The decision was considered a victory for the Cherokee, but it didn’t really change anything. President Jackson is often quoted as having said “Marshall has made his decision, now let him enforce it!” There’s no record of such as statement, but it was certainly consistent with Jackson’s general attitude towards the Court, the Natives, and anyone else who disagreed with him about anything ever. 

The Court’s decision did not, in any case, shape or limit anything Jackson or Congress chose to do in relation to the Tribes thereafter. That the other two branches could ignore such a decision with impunity was a pretty clear indication of the status of a bunch of “savages” vs. the segment of “all men” actually represented.

So it’s 1836 and the Treaty of New Echota has been signed, by influential Cherokee if not by those actually authorized to do so. Stand Watie, Major Ridge (it’s a first name, not a title or rank), Elias Boudinot, and others, led nearly 10,000 of their countrymen to Indian Territory. 

This was NOT the “Trail of Tears.” This was the “voluntary” part, more or less. It was several years before the remaining Cherokee were rounded up by force and driven to join their people far to the west. The suffering on this journey is well-documented and not one of the prouder moments in U.S. History. 

The later arrivals, after so many months of death and suffering, were not particularly happy to see their earlier counterparts, already established in what would later be known as “Oklahoma.” The signing away of their lands wasn’t received much differently than if they’d offered up a few hundred of their virgin daughters for debauchery and eventual beheading. It was not only wrong, it was specifically against Cherokee law and carried the strongest possible consequences. 

Several of the leaders of the “Treaty Party,” whose names had validated the removal treaty, were assassinated on the same night, not long after the remaining Cherokee arrived. It’s assumed that John Ross was behind this, or at the very least was aware of it before it happened, but no one knows for sure. 

Whatever the justice or injustice of this decision, it isn’t the sort of thing that smooths transitions or promotes unity. The tensions weren’t new – full-bloods already tended to be pretty conservative while mixed-bloods were far more receptive to change and some elements of white culture – but this didn’t help. These same divisions will reappear in less than a generation when the white guys start dragging the Five Civilized Tribes into their “Civil War.”

It’s worth noting that the time period between Indian Removal in the 1830s and the start of the Civil War in 1861 is considered something of a “Golden Age” for the Five Civilized Tribes. This might be partly a sort of historical “spin” to offset white guilt over removal, but it’s not without merit.

The Tribes had brought their Black slaves with them to Indian Territory. The story of slavery among the Five Civilized Tribes is a whole other tale, but the short version is that by and large, slavery among the Tribes was far less onerous than that practiced by white southerners. Slavery is still slavery, of course, but it generally lacked the malice and violence brought to mind when discussing early American history. 

For a quarter of a century, then, the ‘Red Man’ and the ‘Black Man’ lived in relative peace and quiet in Indian Territory. They rebuilt their governments, their schools, their presses, their churches, and their lives. They learned to adapt to the realities of this new territory and enjoyed a rare generation free of white interference. 

Until that war thing, at least. Once that started, it was all pretty much downhill for the Cherokee and every other “civilized” tribe. For good.

Moment of Silence – Bown v. Gwinnett County School District (1997) / Brown v. Gilmore (2001)

~ Blue Cereal

Moment of Silence

Two cases in the early 1960s largely eliminated state-sponsored prayer from public schooling. Engel v. Vitale (1962) and Abington v. Schempp (1963) are to this day touted by the far right as responsible for having kicked God out of schools – leading inevitably to sex, drugs, violence, rock’n’roll, corduroy, divorce, the pill, AIDS, the Clintons, terrorism, and a Kenyan sleeper-cell Mooslim illegitimately seizing the White House for eight long, painful years. 

The solution, of course, is to get God back IN our schools by requiring regimented recitation of state-approved chants. He LOVES those! Do this, we are assured, and America’s problems will vanish faster than you can say “civil liberties!” 

Alabama led the way in the 1980s with a series of legislation which eventually led to Wallace v. Jaffree (1985), the only “Moment of Silence” case to reach the Supreme Court to date. The Court determined that the state could mandate a “moment of silence” during the school day, but could not lead or even encourage prayer during that time. 

The goals of Alabama’s legislation were no secret – state legislators ran on promises to get prayer back into schools, or as close as they could get it. That’s largely what stifled further establishment in Alabama – the Court refused to pretend the history and rhetoric associated with legislation didn’t exist while considering its constitutionality. 

Legislative leaders in other states took note and began exercising greater caution as they argued for moments of silence of their own. Suddenly this 60-second period would promote non-violence and academic reflection and gluten-free living and all sorts of things. 

A decade after Wallace, Georgia passed its own version of a “moment of silence.” It was challenged by a classroom teacher and ended up in the Eleventh Circuit Court of Appeals as Bown v. Gwinnett County School District (1997). The Court determined that the Moment of Quiet Reflection in Schools Act did NOT violate the Establishment Clause. 

The Court’s written opinion is unremarkable, but includes some details of note, such as this bit from what they call the Act’s “uncodified preamble”:

The General Assembly finds that in today’s hectic society, all too few of our citizens are able to experience even a moment of quiet reflection before plunging headlong into the day’s activities. Our young citizens are particularly affected by this absence of an opportunity for a moment of quiet reflection. The General Assembly finds that our young, and society as a whole, would be well served if students were afforded a moment of quiet reflection at the beginning of each day in the public schools.

It’s an absurd bit of glossy nonsense, but it’s constitutional nonsense. We could all probably benefit from drinking more water as well, but I notice no one’s mandating a moment of refreshing hydration each morning. But whatever.  

Also in the ‘History of the Case’:

Senator David Scott, the primary sponsor of the Act… represented an urban district in Atlanta, Georgia. He was the Chairman of the Senate Education Committee… and a member of the State Violence Task Force Committee to prevent violence in schools. Senator Scott introduced {the Moment of Silence bill} as a part of a package of legislation aimed at reducing violence among Georgia’s youths.

I realize I’m a bit cynical, but 60 seconds of mandatory head-bowing seems a poor substitute for addressing poverty, mental health, drug addiction, sexual abuse, etc. But perhaps I assume too much. 

Senator Scott had observed that after several killings on school campuses, students came together to have a moment of silent reflection. Noting that this moment of silence seemed to be beneficial and calming, Senator Scott believed that providing students with an opportunity for silent introspection at the beginning of each school day would help to combat violence among Georgia’s students.

I guess we’re lucky Georgia didn’t mandate a daily mock funeral ceremony using the same reasoning. 

During debates over the bill, some state legislators liked it specifically because it was a step towards school prayer. Others opposed it for the same reason. Wisely, many in favor of the bill went on record arguing that it didn’t promote school prayer or have any religious purpose at all. That gave the Court enough cover as to the purpose of the bill that they could in good conscience consider it “religiously neutral.” 

The teacher who initiated the case, Brian Brown, argued that the law violated the Establishment Clause and cited the “Lemon Test” to prove it. No surprise, then, that the 11th Circuit used Lemon to respond.

The first prong of the Lemon test requires that the challenged statute have a “clearly secular purpose” … However, the statute’s purpose need not be exclusively secular… A statute violates the Establishment Clause if it is “entirely motivated by a purpose to advance religion” …

To ascertain a statute’s purpose, it is, of course, necessary to examine the language of the statute on its face… It is also appropriate to consider the legislative history of the statute and the specific sequence of events leading up to the adoption of the statute.  

The Court cites both the law itself and its context and presentation by way of establishing that the law explicitly avoids promoting religious activities during this magical minute. At the same time, should a child choose to bow their head or clutch their rosary beads during the moment of life-altering focus and de-violencing, the state may not discourage them from so doing. 

The Court specifically addresses the difference in dynamics between this situation and Jaffree – largely distinguished by what was said in debates leading up to passage, and contemporaneous legislation with similar goals. 

Issues involving motivation or purpose of pro-religious legislation are sometimes determinative, sometimes merely a factor in the larger discussion, and (especially recently) sometimes completely ignored altogether. Nevertheless, just to be safe, lawmakers are highly encouraged to be completely disingenuous when proposing and debating such legislation in order to assure they pass judicial muster. They needn’t feel bad. It’s like Jesus said, “You must obscure the truth, because the truth will just get in the way.”

In Jaffree, the primary sponsor of the Alabama statute and the Governor of Alabama both explicitly conceded that the purpose of the Alabama statute was to return prayer to the Alabama schools, and Alabama failed to present any evidence of a secular purpose… In contrast, in this case, the primary sponsor of the Act indicated that the Act had a secular purpose. 

It is true, as Bown argues, that some legislators expressed the desire to return prayer to Georgia’s schools and supported the Act for this reason. However, it is also true that other legislators felt that the Act did not involve school prayer…

You get the idea. 

Under the second prong of the Lemon test, a statute violates the Establishment Clause if its primary effect is to advance or inhibit religion…

The announcement made over the school intercom by Principal Hendrix indicated only that there would be a moment of silence to reflect on the day’s activities. This announcement in no way suggested that students should or should not pray silently during the moment of quiet reflection… 

There is no indication in this case that any teacher encouraged prayer in violation of the guidelines stated in the Administrative Bulletin. There is no evidence in this case that any students were exhorted to pray, favored for praying, or disfavored for not praying…

The Court then contrasts this dynamic with situations in which students may feel indirectly, if not explicitly, coerced, such as in Lee v. Weisman (1992) and finds they’re not at all similar. There’s no advancement of religion here. 

The third prong of the Lemon test dictates that the statute must not foster an excessive government entanglement with religion… 

We conclude that there is no excessive entanglement in this case. 

Yeah, that was going to be a tough sell at best. 

All that the Act requires is that the students and the teacher in charge remain silent during the moment of quiet reflection. Teachers are not required to participate in or lead prayers, nor are they required to review the content of prayers during the moment of quiet reflection…

They’re not only “not required;” they’re specifically prohibited from so doing. 

The fact that a teacher must stop a student who prays audibly or otherwise makes noise during the moment of quiet reflection does not result in excessive government entanglement with religion. There are many times during any given school day when teachers tell their students to be quiet and when audible activity of any kind is not permitted. The fact that this particular period of silence is mandated statewide does not create entanglement problems.

A few short years later, Virginia took their turn. The resulting case, Brown v. Gilmore (2001), was heard and decided by the Fourth Circuit Court of Appeals and the outcome was basically the same. It’s notable for being the first instance I’ve come across of the specific phrasing used by many state legislatures since, including Oklahoma’s. Here’s how Oklahoma’s statute reads, in case you’re curious:

The board of education of each school district shall ensure that the public schools within the district observe approximately one minute of silence each day for the purpose of allowing each student, in the exercise of his or her individual choice, to reflect, meditate, pray, or engage in any other silent activity that does not interfere with, distract, or impede other students in the exercise of their individual choices.

But there’s more…

The Attorney General of the State of Oklahoma is hereby authorized to intervene in any legal proceeding to enforce the provisions of this act and shall represent any school district or employee named as a defendant therein.

Ha! Defensive, much?

Several similar cases have produced comparable results in other federal courts. They each have their own quirks, but the pattern is clear. 

With the sudden national lurch to the right (and away from even token concern with civil liberties or the sincerity of inflicted faith), it remains to be seen what may come next. For now, however, the “moment of silence” – a pointless exercise designed only to allow legislators to walk right up to that line separating church and state and kick dirt on its trousers – is on solid constitutional ground. 

Presumably this is already rolling back forty years of decadence and cultural decline. If not, we might have to up it to two minutes.

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