Court and Constitution, part 2

the longhorn radio network presents the court and the constitution essays on the united states constitution and the supreme court prepared and presented by charles allen write an authority on constitutional law and the federal courts professor write is a member of the university of texas at austin law faculty suppose that a particularly brutal murders committed at the play suspected person would threaten the victim in the past they search that person's house without a warrant and find in the house evidence that establishes clearly that he was the killer strange to say the courts will not admit that evidence unless there's other evidence with which to establish deal the killer will go for an example that i put the place of violated the fourth amendment by searching a man's house without a rat there are times when a search warrant is not required but the bare facts i've stated are not enough to bring the case within any of the exceptions to the requirement for it the principle of the fourth amendment the people talk today as that amendment says secure in their

persons houses papers and effects against unreasonable searches and seizures requirement or as a sound protection against unjust before the searchers but what should be the remedy for placer found were violated the fourth amendment this country is unique in the world and when the evidence that has been illegally obtained cannot be introduced in court in nineteen fourteen the supreme court announced that federal courts could not here illegally obtained evidence of many states did not accept this exclusionary rule as it's called if that made no sense that and benjamin cardozo his phrase the criminals to go free because the constable has blundered but in nineteen sixty one and the controversial case of mattresses ohio the court held that the constitution bars state courts as well as federal courts from hearing evidence of this kind the argument for the exclusionary rule is that in practice this is the only remedy to enforce the fourth amendment police departments are not likely to discipline an

overzealous officer soda said and there is little chance that the victim of an illegal search will be able to recover substantial damage is from the officer it is thought that the exclusionary rule deters improper please conduct because law enforcement officers cannot get any advantage from the fruits of an illegal search whether the exclusionary rule is effective as a deterrent is highly debatable studies have shown that it has little impact on the police the camino debate however about the fact the persons who've committed crimes have gone for me because the exclusionary rule required suppression of evidence that would prove big deal many people thought this too high price to pay for the rule over last june chief justice berger wrote a powerful dissenting opinion calling on congress to provide money damages for those who've been the victim of illegal police found out at the same time repealed exclusionary rule the case against the rules strongest them a violation of the fourth amendment by the officers as minor and technical and these

cases a criminal goes free because of the honest mistake of the policeman another case last june the supreme court reversed the conviction of a man who had murdered a fourteen year old girl because it found technical defects in the issuance of a warrant for the search of the man's car in which incriminating evidence was found the court divided five to four in the case of the five a majority could not agree on a single opinion explaining why reversal was necessary it is hard to hold the officers on the spot to be always right in there quick decisions and questions the judge is considering the matter of leisure finds it difficult to resolve there is a middle ground on this issue one that has been endorsed by the american law institute a respected group of judges lawyers professors and that isn't biden until recently produced by senator lloyd bentsen of texas this would give the courts discretion to receive illegally obtained evidence unless there's been a substantial violation of the fourth amendment thus in a case such as the map case itself in which the officers

simply ignored the fourth amendment and road roughshod over the rights to the homeowner the evidence would still be excluded but the evidence could be admitted if the departure from fourth amendment requirements was unintended and substantial if this for the law to be no profit and deliberately smallest mouse the criminals could not claim a windfall from boston and significant mistakes in the course of good faith law enforcement this is one of the liveliest issues of constitutional law today and to be hearing more about the exclusionary rule either from the court or the congress that was another essay in the series the court and the constitution prepared and presented by charles allen right of the ut austin law faculty this program was produced and distributed by communication center the university of texas at austin this is the longhorn radio network oh lord radio network presents the court and the constitution

essays on the united states constitution and the supreme court prepared and presented by charles allen write an authority on constitutional law and the federal courts professor write is a member of the university of texas at austin law faculty the supreme court in united states has three principal functions that interprets allows congress makes it enforces that great series of our sharp drops in the bill of rights in which our forefathers sought to protect the liberties of all this against government finally appears in the apt phrase one commentator the umpire to the federal system when the constitution was drawn the framers felt the need for central government could speak for the whole country on matters in which a single voice was required on other matters the states were to continue to be free to act for themselves this division of powers between the federal government and the states was necessarily and precise the most that the framers could do with mark the great outlines of the division and so the constitution necessarily speaks in very general terms that can be

interpreted in more than one was in the course of our history there been many times when the federal government most states have disagreed over whether a particular power been delegated to the government in washington weather was reserved to the states someone had resolve those controversies in the spouse this form of the supreme court for much of our history it was the most important function of the supreme court that's become less so is the tendency is increased bought the washington for the solution of every problem and as the court has been increasingly permissive and upholding the validity of federal legislation take for example the famous players giving congress power to regulate commerce with the several states so current interstate commerce clause an early opinion chief justice marshall held that this gave congress' power to regulate all comers which concerns more states than one but in a simpler time most transactions of a business major did not seem to be of any concern except in the state where they took place in an era when the industry was undeveloped and the

most transportation was by war this was a natural water to the power of congress over commerce was with very few exceptions restricted to those activities that actually crossed the warrens but though the constitution does not change the nature of our economy hurts improved methods of transportation have led to a highly interdependent national economy in which for chile every business transaction may concern more states than one sky and they recognized by the supreme court in a notable series of decisions beginning in nineteen thirty seven a strike a pittsburgh steel mills seems on the face a local matter but its impact will quickly be felt by industries all over the country that are dependent on steel bust congress may regulate labor relations and steel mills a lumber mill employee in southern georgia may never have traveled outside the county of his birth of his employer is free to play him the sub standard wage georgia lumber will have an unfair competitive advantage when it was sold in some far off state where higher wages to require

accordingly congress can set minimum wages it was even held congress can tell a former whether he can grow wheat for use in his home at his feet for his poultry the price of wheat the court argued depends on the demand for reform or felber has not allowed to grow his own wheat for these purposes he will have to buy wheat in the open market and this increased amount to raise the price for wheat shipped in from other states as a result of these cases and others like it now appears that there is no limit whatever over the power of congress and commercial matters than once in our power to regulate commerce among the several states is now brought authorization to make any economic regulation the congress thinks desirable other constitutional clause is a very similar to force dramatic development the course rose i'm tired of a federal system has largely ended the court may still give the uk signal if it finds the congress's violated one of the individual liberties protect a bubble rights but it's highly unlikely that it will

declare that the federal government is trespass to an area reserved to the states when the court held in nineteen seventy the congress could not buy simple legislation changed the voting age requirements for state elections it was the first on the more than thirty four years that an act of congress had been held to be unconstitutional invasion of the rights of the states many will think the court has gone to for allowing the federal government to exercise power at the trend in this direction it isn't likely to be reversed that was another essay in the series the court and the constitution prepared and presented by charles allen right of the ut austin law faculty this program was produced and distributed by communication center the university of texas at austin this is the long war and radio network it's been the long war and radio network presents the court and the constitution

essays on the united states constitution and the supreme court prepared and presented by charles allen write an authority on constitutional law and the federal courts professor write is a member of the university of texas at austin law faculty the supreme court is one of the great tourist attractions in washington to the tourist was lucky enough to visit a time that the court is in session the way the court functions must come as quite a surprise for is a far cry from the courtroom scenes on television they're all the most citizens know about courts the first place the supreme court is not a trial court hears appeals for more federal courts in the state courts in those rare cases the cubicle originally in the supreme court the court appoints a senior federal judge to hear the evidence in a passage on the recommendations he makes about the case thus the visitor to the supreme court will not see lawyers examining and cross examine witnesses normally see a jury box plus jury trial the supreme court was and seventeen ninety seven instead

of saying here are lawyers arguing about the law that should applaud particular case but the supreme court or the united states differ is in a number of respects even from the typical appellate court it has as befits the highest court in the law and a patent for a drama about that other american courts cannot match the courtroom itself was a huge high ceilings room with heavy red draperies hanging between huge marble curtain calls spectators are not allowed to read and take notes and gentlemen the corcoran must keep their suit coat spot and unless they're wearing a vest the clerk in the marshall were caught away from there in the courtroom as the lawyers appearing for the united states quill pens to put council table though they are more likely to be taken away as souvenirs of my art of the eu just as the cockroaches ten a hush falls over the courtroom company our a gavel sounds the nine justices move through openings in the curtains places behind their chairs and the marshall makes the traditional

announcement that the court is in session ending with the words god save the united states and this honorable court the gavel sounds again the justices mosley audience sit down and the car proceeds to which work for all the drama and majesty that surrounded the supreme court has many ways a very informal court the justices are already read the printed papers which lawyers are set forth a legal positions the precious time that has allowed for oral argument does the justices a chance to satisfy them sell some aspects of the case that are troubling too in the early days of our history when the court was less busy than it is today by daniel webster might take several days to present his argument and the argument was often a classic example of well prepared oratory the court simply does not have time for that ordinarily it allows thirty minutes we saw in the case of the lawyer comes expecting to make some well rehearsed speeches in for a

shock you will hardly begun one of the justices will interrupt you ask him a question about the case others will follow with questions and the argument will be a colloquy of discussion goes back and forth between the lawyer and the nine justices lawyer with ink is barely begun when the red light will come on telling him his time is up it sounds like an ordeal to be questioned about a case by non than a great intellectual caliber and indeed some lawyers are quite nervous as they wait for their turn to come in fact welch's an exhausting experience it is also a rather pleasant one the atmosphere is friendly and the justices are courteous when they put their questions in the letters lectern is close enough to the bench behind which the judges said that there is a feeling of intimacy between council on the court of course lawyer must be fairly prepared in every aspect of his case since you must be able to answer immediately whatever question about that justice may paula but the members of the corps often help him out even here it's quite common when for some reason why are not think of

the answer he wants to make to a question when justices asked that another justice will intervene and say why isn't it your position that the us putting the wires mouth the words for which he has been on an argument before the court may seem an odd and foremost proceeding but experience has shown is the best way for the justices to be clear in their minds about cases in the cast will inform votes is also a grand spectacle that anyone visiting washington should try to stay at least once that was another essay in the series the court and the constitution prepared and presented by charles allen right of the ut austin law faculty this program was produced and distributed by communication center university of texas at austin this is the long war and radio network fb along and radio network presents the court and the constitution essays on the united states constitution and the supreme court prepared and presented by

charles allen write an authority on constitutional law and the federal courts professor write is a member of the university of texas at austin law faculty last week i describe what an oral argument before the united states supreme court is like that will speak to the process by which the court decides the case after his herd or origin this is a process that necessarily takes place in secret portion of the supreme court building to which the public are now has no access to members of the court have spoken and on occasion on to describe the process of fashion way that we know and general workers' the court hears arguments on the first four days a week on friday the justices assemble their conference room to discuss the case as they have just heard are good the room is large with tasteful but simple decorations at one end is a desk behind which the chief justice sits when he uses the room for receiving important visitors and for some lesser mario occasions but the other answer handsome table with lawn chairs around there are shells and walls contain all the costs

visions of the supreme court and one painting that hangs in the room is a portrait of john marshall the great chief justices he's now when the question conference no one is permitted in the room accept the nine justices in order to preserve absolute secretly for the court's deliberations not even a messenger is a well if they justice wishes to send out a message the newest associate justice takes the message to the door and as a true messenger an empty room when the justices come together for a conference each just to shake hands with everyone just goes these handshakes very sexual or tradition going back to the days of chief justice for the beginning of the century who had been optimistic view that the members of the court would work more harmoniously together if they all shaken hands but it's just a stage two is callings the issues among the cases they've heard that week indicates his own view on the issues and then each of the other justices says what it wishes about the case in syria the associate justices speaking are some european court but there are reports that on occasion

the process has been less state level most would suggest and one justice has been so aroused by something and others said that you've broken an upturn after each of the justices has had his say record votes the voting is in reverse order with the most junior justice voting first the chief justice last each member of the court keeps his own record of what the vote years in a particular case after the conference was over it must be decided who will write the opinion of the court each case the chief justice makes this designation in cases in which is in the majority if he was on the losing side of a particular case the senior associate justice who is a majority doesn't it's the opinion writer for that case the justice was picked right you can do is to work out the privacy revamp chambers when he has a draft service force and that is printed mccourt print shop and distributed to the other justices they sent the author of the opinion is suggestions they have for improving it an opinion they go through

a number of drafts of his modified to take out of the suggestions well i'm just preparing the opinion four other justices maybe working opinions of their own concurring opinions in which the state or individual reason for joining the result reached by the court or dissenting opinions show resolve majorities and so on the author of the court's opinion and turn may make changes not opinion to meet the points state of them concurring and dissenting opinions though the court has voted on the friday after the argument was heard know justices bound by the vote he cast than any changes won anytime prior to announce when the decision a particular result may seem less appropriate and the reasons for it and set out writing was what begins as an opinion for the court may end up as a descent have enough justices changed their moms finally the various opinions would be sufficiently polished the court is ready to announce that decision the court follows the queen's costume of announcing its decisions orally from the bench the next

term the court is in session the chief justice will recognize the author of the court's opinion and he will tell what the court has decided and summarized the reasons stated and his opinions known is made of many dissenting opinions that have been filed copies of the opinions are given to members of the press and the cases become history that was another essay in the series the court and the constitution prepared and presented by charles allen right of the ut austin law faculty this program was produced and distributed by communication center university of texas at austin this is the long war and radio network along on radio network presents the court and the constitution essays on the united states constitution and the supreme court prepared and presented by charles allen write an authority on constitutional law and the federal courts professor write is a member of the university of texas at

austin law faculty congress shall make no law abridging the freedom of speech for all the press the snowy words of the first amendment one of the proudest boast of our american heritage we cherish the fact that in the united states a man can freely speak his mind without fear that he will be punished for what he said and that the press is free publish whatever wishes without having to seek approval from some government censors we can think of other countries which these freedoms did not exist and we consider ourselves for more fortunate than the people in those places the seemingly simple words in which this great guarantee of freedom or put race on the most difficult constitutional questions with which the supreme court grappled does the government have the right to protect itself against communist agitators who go about seeking to incite people to overthrow the government by force and violence court held dear mayor city limit the use of sound trucks in order to provide a more peaceful quiet atmosphere for its citizens the court held

that it could if the speaker is stating unpopular ideas and some of his audience or threatening violence against him muster please protect the speaker were made they were going to stop speaking or prevent violence the court held place my songs the speaker and all of these instances and many others that could be stated the court held that the interest in free speech is outweighed by some other legitimate governmental interest the court was sharply divided nature the cases i just described one of the centers in each of the cases was like just as you are well black who believe that the first amendment should be read literally and that as he put it no law means no law yet last year the court had before a case in which young man had been convicted of disturbing the peace because he wore a courthouse carter a jacket with watering on expressing his sentiments about draft language that many people find offensive the court reversed the conviction but just as

black was among the dissenters he thought the what the young man had done was conduct rather than speech and thus it was not protected by the first amendment this line between speech and conduct is one that is often troubled the corps says people frequently do express their ideas by acts rather than words thus the court has held that when high school children wear black armbands to class to protest the war in vietnam this was symbolic speech he was constitutionally protected on the other hand when a man burned his draft card to express his protest of the war court with only one dissenting upheld his conviction it is i think an unhappy fact in our enthusiasm for freedom of speech lessons from the speakers saying things we do not like to hear many liberals who ordinarily are strong advocates of the first amendment are reluctant to agree that the grand wizard of the ku klux klan has as much right to speak freely is doesn't know the civil rights leader

i recall some years ago going to speak about the bill of rights to a real what religious group or university well we were waiting for the meeting to begin the head of the group showed me a publication that come to the publication reeked of bigotry it made our greatest of attacks in strong language and jews and roman catholics why my post that are people are deprived stuff like this the answer is the first amendment which allows all speech whether the speech is wise or foolish and lightened or bigoted the philosophy of the first amendment was never more eloquently expressed by justice oliver wendell holmes and a decision in nineteen ninety he said and then every august the time has upset many fighting face then they come to believe even more than they believe the very foundations of their own condo but the ultimate good desired is better reached by free trade and ideas with the best test of truth is the power of the follow up to get itself accepted in a competition of the market

and the truth is the only ground upon which their wishes safely can be carried out that in any rate is the theory of our constitution is an experiment as all life as an experiment well that experiment is part of our system i think that we should be terribly vigilant against attempts to check the expression of opinions that we love that was another essay in the series the court and the constitution prepared and presented by charles allen right of the ut austin law faculty this program was produced and distributed by communication center the university of texas at austin this is the long war and radio network fb along one radio network presents the court and the constitution essays on the united states constitution and the supreme court prepared and presented by charles allen write an authority on constitutional law and the federal courts

professor write is a member of the university of texas at austin law faculty the man who wrote the american constitution that had personal experience with the system in which a particular church was established as a national church and supported by the state one of the reasons they came to america was to enjoy religious freedom and the provision of the first amendment that there shall be no they're respecting an establishment of religion or prohibiting the free exercise thereof was intended to create what thomas jefferson called the wall of separation between church and state but inevitably there is a tension between the two cultures of the first amendment dealing with religion traditionally for example charges and some more religious buildings have been exempt from taxes this tax exemption as a benefit religious groups was challenge on the ground with establishment clause prohibits laws of a religion on the other hand to impose taxes and religious buildings could very well be attacked as interfering with the free exercise religion for

reasons such as this a metaphor about a wall of separation is not a sufficient answered questions about the relation of church and state and chief justice burger wrote for the court last year line of separation far from being a wall is a blurred interstate invariable barrier depending on all the circumstances of a particular relationship because interpretation of the religion clauses of the first amendment is difficult the supreme court is often sharply divided in the cases of the sky and come to it and biting dissenting opinions have been very calm it is not easy to reconcile the results the court has reached in particular cases it has held for example the public funds can be used bravado bus transportation school lunches and textbooks for students in private religious schools but that the state cannot help pay the salary of teachers in those schools even though teachers are teaching subjects unrelated to religion is

constitutional for a school to release students early to go to religious centers for religious instruction other students who do not wish this instruction are kept its cool to study whole plan is unconstitutional of the religious instruction is provided and school building itself away from the school all the cases just described are highly controversial americans are very strong and conflicting views about the proper relation of church and state the greatest controversy however was provoked by the decisions in nineteen sixty to nineteen sixty three prohibiting bible reading in the use of a non denominational prayer in public schools there were anguished cries that the court had taken got out of the schools and that this was the work of an atheist the court a proposed constitutional amendment that would've allowed school prayers was narrowly defeated in the house it's a nineteen seventy one and there are still a number of schools in which prayer and bible reading persist despite the supreme court's decisions in fact the

court's opinions of the prayer and bible cases show no hostility toward religion and ellen reflect the constitution requires government to be neutral matters of religion religious exercises are not proper is a part of the public school program but courses in the history of religion comparative religion or the bible as literature remains perfectly proper it is neither sacrilegious know and i would just the court said to say that each separate government in this country should stay out of the business of writing or sanctioned an official prayers and leave that purely religious function of the people themselves and are those the people choose talk to for religious guidance most major religious groups and leaders have seen this point of agreed with these decisions by the court they have recognized that in a country like ours in which there's a great diversity of religious belief religion frost better under a system in which the state is neutral as late justice robert jackson himself a devout churchmen once wrote it is possible a hold of faith enough confidence to believe that what should be rendered to god does not need to

be decided and collected by caesar the day that this country ceases to be free for your religion it will cease to be free from religion except for the sector can win political power that was another essay in the series the court and the constitution prepared and presented by charles allen right of the ut austin law faculty this program was produced and distributed by communication center university of texas at austin this is the long war and radio network fb the long war and radio network presents the court and the constitution essays on the united states constitution and the supreme court prepared and presented by charles allen write an authority on constitutional law and the federal courts professor write is a member of the university of texas at austin law faculty good argument can be made that the most significant original contribution the framers of our constitution made to the science of government was an article two

in which they invested all executive power in a president of the united states of america the bill of rights was great contribution of england hadn't all rights for a century and such provisions were common in the states the concept of a federal system in which powers are divided among central government and the states was novel but it has not been much copied elsewhere and has developed in this country in a fashion that was astonished our forefathers the notion of the presidency however a single officer who was both head of state and head of government it was chosen by the people for a limited term has been adopted in many other countries and has been immensely successful here in the sixties up or aris good know there's a great aria an would start reciting his mind is the highest power a seventeenth century czar of all the russians had great power but his power was

purely compared that exercise by a president of the united states the very existence of civilizations part by turning his wisdom is good sense of calmness and his courage as he makes hard decisions and international crises interim nuclear holocaust as possible the president must also several times a day they're the heavy responsibility of resolving issues that are less dramatic but that have great importance on the course of the economy the preservation of public order and the protection of individual rights the powers of the president are not absolute for the framers as justice frankfurter once wrote the doctrine of separation of powers was not near theory it was it felt incessantly accordingly the road into the constitution a series of checks and balances and powers are separated among the three great branches of government virtually every president has known the frustration of having a cherished program rejected by the congress or found unconstitutional by the supreme court what chief

justice vincent describe as a broad executive power granted by article two to an officer on duty three hundred and sixty five days a year does give the president considerable room to shape the future course of the greatest nation on earth this power is vested in one man in congress to the supreme court backed the responsibility is shared among those were in the majority when the president acts the actual on the candles listen to wise of oysters but only he connect the decision and president truman's for years the buck stops here the extent of the executive power vested in the president has not often been a matter for litigation the court's president lincoln's suspension of the writ of hideous corpus of the ups of the civil war led to a famous confrontation with chief justice coming president truman's seizure of the steel mills to avert a strike during the korean war were struck down by the supreme court in very

large measure the power of the presidency is what the president likes recently was my privilege to sit in the cabinet room as the committee of the cabinet discussed with president nixon possible courses of action to deal with explosive and difficult issue the meeting was relaxed informal the president was warm and affable hollande avoid of pop are often patients yet when i thought of all that is symbolized by the president of all the power vested in him of the heavy responsibilities imposed on them i found that my hand was trembling which is our president caught before elections his margin of victory maybe very thing but from the moment he takes office he is present not a party of all the people all of our hopes and aspirations for the current group we love wrapped up in one moment who has sworn that he will to the best of my ability preserve protect and defend the constitution of the united states the framers lived in a time of emperors and kings hereditary

marxist elections saw a significant power it is a tribute to their genius that they could conceive of an officer more powerful than the mightiest can be answerable to the humble citizens that was another essay in the series the court and the constitution prepared and presented by charles allen right of the ut austin law faculty this program was produced and distributed by communication center the university of texas at austin this is the longhorn radio network it's been