US implicit

Has it been interpreted as being implicit in the US Constitution?

Right	Breakout	Contents
Freedom of Association		Since the 1950s and 60s, SCOTUS has, to an extent, ruled that the speech and assembly rights imply a right to associate, especially for politically expressive purposes. For example, it ruled in NAACP v. Alabama that the NAACP cannot be forced to submit a membership roster to a state government. In 2000, in Boy Scouts v. Dale, the court held that the Boy Scouts could exclude gay members (in violation of state non-dsicrimination laws) because not being able to do so would undermine their ability to express a viewpoint - expressive association. In Roberts v. US Jaycees, an organization for young business leaders’ ban on female members was challenged because it violated state non-discrimination law. This case is notable because the court identified a new form of association: intimate association. The opinion of the court states that “certain intimate human relationships be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme.” The opinion places this right under the general aims of the First Amendment. The court ruled against the organization, but in so doing, it established the idea that Americans have the right to free intimate and expressive association. Still, one could argue that in a state with true freedom to associate, any group of people would be able to enact whatever membership restrictions it wanted, regardless of whether or not it falls into the categories of “expressive” or “intimate.” Although assembly is the First-Amendment freedom that most seems to correspond with association, SCOTUS has not derived free association this way. Rather, it uses a more nebulous combination of various First-Amendment rights. As the majority held in NAACP v. Button, “It is not necessary to subsume such activity under a narrow, literal conception of freedom of speech, petition or assembly, for there is no longer any doubt that the First and Fourteenth Amendments protect certain forms of orderly group activity.” References: Boy Scouts of America v. Dale, 530 U. S. 640 NAACP v. Alabama, 357 U. S. 449 NAACP v. Button, 371 U.S. 415 (1963) Roberts v. United States Jaycees, 468 U.S. 609 (1984)
Freedom of Expression		Yes. The First Amendment is presumed to guarantee the right to free expression by guaranteeing the right to freedom of speech, freedom of the press, freedom of peaceable assembly, and freedom of petition, though the phrase “freedom of expression” is not explicitly used in the Constitution. The United States Supreme Court has gradually portrayed freedom of expression as being implicit in the U.S. Constitution. This reality stems from legitimate discourse on activities that may not fall under the grammatical definition of speech, but nevertheless warrant protection by the judiciary in order for democratic norms to prevail. From early cases pertaining to free religious exercise to several landmark judgments in the latter half of the 20th Century, the Court has introduced and expanded its mythology surrounding free expression. Some forms of expression that may be protected—and regulated—include religious expression, protests, fighting words, imminent threats, obscenity, and expressive student conduct in academic settings. Prior to various cases dealing with the Free Exercise Clause of the First Amendment, no significant attempt had been made by the court to examine the relationship between free expression and American constitutional law. Despite the separate inclusion of freedom of religion in the Constitution, cases revolving around religious activity have shaped the Court’s commentary on free expression. In Cantwell v. Connecticut, 310 U.S. 296 (1940), the Court ruled in favor of a group of Jehovah’s Witnesses in New Haven who had been prosecuted for engaging in religious solicitation without a license from the local government. The justices primarily asserted that the Constitution guarantees the “freedom to act” for the Cantwell solicitors, or other groups that engage in religious expression (Justice Roberts, 1940). Solicitation can neither be termed as purely speech or purely expressive, however, due to the combination of speech and physical expeditions that are typically involved. While the freedom to “act” may insinuate a right to engage in expressive activities, the justices never directly mentioned expression—a reality that, combined with the ambiguous nature of soliciting, did not establish expression as a fundamental right. Given the legal ambiguity established by Cantwell, the Court likely understood the necessity of defining expression as it pertained to religious issues. In Sherbert v. Verner, 374 U.S. 398 (1963), the justices established a compelling interest test for government statutes that potentially abridge certain forms of religious expression. Writing for the majority in response to a lawsuit from a Seventh-Day Adventist who was fired and denied unemployment benefits for refusing to work on Saturday, Justice Brennan asserted that “the imposition of such a condition [labor mandates lacking in exemptions for religious workers] … inevitably deterred or discouraged the exercise of First Amendment rights of expression” for religious groups (Justice Brennan, 1963). Given that this ruling directly mentioned free expression in response to a lawsuit claiming religious discrimination, it can be argued that Sherbert clarified the position of free religious expression implied by Cantwell. Following several landmark decisions on expression issued by the Warren and Burger Courts, religious exercise reintroduced itself in the ongoing debate over the extent to which freedom of expression can be invoked in the courtroom. In Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), the Court rejected a Free Exercise Clause challenge of a narcotics statute in Oregon (specifically, one that regulated Peyote, which was ingested by Native American Church adherents as a religious custom) while acknowledging attempts in the past to “punish the expression of religious doctrines [the state] believes to be false” (Justice Scalia, from United States v. Ballard, 322 U.S. 78 (1944). In a ruling that was sharply criticized by religious groups following its release, the Court confirmed the implicit right of expression as it pertains to religion. While it may be argued that the decisions in Cantwell, Sherbert, and Smith merely affirmed the previously enumerated right of free religious exercise, the various references to expression in all three of these decisions fit within a broader line of judicial reasoning in expression-based cases that extend beyond religion, which will be further discussed below. As Smith indicates, The Court’s acknowledgment of freedom of expression being an implicit right can be evidenced by decisions that limit this right altogether. In ruling that expressive activities that constitute a clear and present danger to the public are not protected, for example, the Court implies that any activities that do not exhibit this danger are lawful. This precedent was established by Schenck v. United States, 249 U.S. 47 (1919), which affirmed the ability of government officials to censor modes of expression (i.e. Charles Schenck's pamphlets, which advocated for illegally avoiding the draft) that impede on the government’s ability to wage war, while acknowledging that such activities may be protected during times of peace. As the distribution of pamphlets would likely constitute expression rather than physical speech, it may be inferred that the justices, in limiting freedom of expression in some cases, acknowledged its legality in others. The Court furthered this assertion in United States v. O’Brien, 391 U.S. 367 (1968) by ruling that the burning of draft cards in public places during times of war is not protected speech, as the prohibition of this activity was “an important or substantial governmental interest unrelated to the suppression of free expression” (Justice Warren, 1968). In both decisions, the Court chose to constrain—rather than outlaw—forms of expression that cannot be termed as speech. Finally, governmental regulations for public protests were affirmed in Cox v. New Hampshire 312 U.S. 569 (1941), in which the justices asserted that “time, place, and manner restrictions” have the effect of “safeguarding the good order upon which [civil liberties] ultimately depend” (Justice Hughes, 1941). Given that no right can be limited without prior acknowledgement of its existence, it can be argued that the Court implicitly recognized free expression in Schenck and Cox before directly mentioning it in O’Brien. In light of the Court’s commentary on free expression when confronted with issues pertaining to free exercise and public disturbances, its decisions in Barnette, Tinker, and Morse represent the most notable examples of free expression being recognized as an implicit right. In West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), the court condemned an effort by school administrators to force students to salute the American Flag as an “effort” to “muffle expression” in the schoolhouse (Justice Jackson, 1943). Despite their dissent being primarily motivated by personal religious beliefs, the plaintiffs alleged a violation of the Speech Clause of the First Amendment. The Court clearly interpreted the situation as compelled expression, as defining it as physical speech would not accurately reflect the situation. In Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), the Court broadly affirmed the implicit right to free expression in a decision that largely reflected the language of cases that have already been discussed. The justices affirmed that any governmental interest in promoting order in public schools is “not enough to overcome the right to freedom of expression” enjoyed by students, who “do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate” (Justice Fortas, 1969). In this instance, the Court emphasized freedom of expression without qualification, as its commentary on restrictions that school officials could plausibly enact without abridging the rights of students serves to further affirm the existence of free expression. This rationale was reaffirmed by Morse v. Frederick, 551 U.S. 393 (2007), in which the Court limited student speech (or, more precisely, displaying a banner) that can be “reasonably regard[ed] as promoting illegal drug use,” which remains a major example of the judiciary restricting the implicit right of free expression (Justice Roberts, 2002). In reaffirming and providing exceptions for the precedent set by Tinker (with the exception of Justice Thomas, who called for Tinker to be overruled), the Court maintained its record of acknowledging and limiting free expression. Following the Court’s landmark decision in Tinker, the question of implicitness was all but resolved, and nearly all subsequent cases served to determine the scope—rather than legitimacy—of free expression. Eventually, the justices were again confronted with the issues of anti-war expression and profanity following peace activist Paul Cohen’s arrest in a California courthouse for wearing a shirt depicting an explicit anti-war slogan. In Cohen v. California 403, U.S. 15 (1971), the Court asserted that California’s law prohibiting such behavior “infringed [Cohen's] rights to freedom of expression guaranteed by the First and Fourteenth Amendments of the Federal Constitution,” which were extended to the states via selective incorporation through the Due Process Clause (Justice Harlan, 1971). In Texas v. Johnson, 491 U.S. 397 (1989), the Court again confronted the issue of expression deemed profane by governmental actors in ruling that the burning of the American Flag represented “expressive conduct” that was “sufficiently imbued with elements of [political] communication,” making it protected under the Due Process Clause (Justice Brennan, 1989). In Cohen and Johnson, the Court rejected attempts by state government officials to impose limitations on forms of expression it viewed as offensive to the general public—a remarkable feat for freedom of expression, which would nevertheless be limited in other cases. Expression pertaining to pornographic material was hindered in Miller v. California, 413 U.S. 15 (1973), which concerned the right (or lack thereof) of businesses to distribute explicit content through the U.S. Postal Service. In ruling that obscene expression can be regulated while “acknowledging the inherent dangers of undertaking to regulate any form of expression,” the Court established a clear standard for certain forms of explicit expression that can be regulated (Justice Burger, 1973). In Walker v. Texas, Sons of Confederate Veterans, 576 U.S. 200 (2015), the justices ruled that state governments can reject proposed license plate designs on account of their potential to offend the general public due to their established history of “communicat[ing] messages from the States.” In particular, the Court cited Arizona's “Hereford Steer” License Plate, New Hampshire's “Old Man of the Mountain” License Plate, and various other examples of license plates in other states to affirm this argument (Justice Breyer, 2015). In summary, the implicit right of free expression has developed from the commentary of free exercise cases and evolved into an implied right that the Supreme Court no longer questions. It does not contain any strict limitations, as any standard beyond the establishment of an overbearing governmental interest would negate its effect of addressing the shortcomings of the free speech clause. Cantwell v. Connecticut, 310 U.S. 296 (1940) https://supreme.justia.com/cases/federal/us/310/296/ Sherbert v. Verner, 374 U.S. 398 (1963) https://supreme.justia.com/cases/federal/us/374/398/ Employment Division v. Smith, 494 U.S. 872 (1990) https://supreme.justia.com/cases/federal/us/494/872/ United States v. Ballard, 322 U.S. 78 (1944) https://supreme.justia.com/cases/federal/us/322/78/ Schenck v. United States, 249 U.S. 47 (1919) https://supreme.justia.com/cases/federal/us/249/47/ United States v. O’Brien, 391 U.S. 367 (1968) https://supreme.justia.com/cases/federal/us/391/367/ Cox v. New Hampshire 312 U.S. 569 (1941) https://supreme.justia.com/cases/federal/us/312/569/ West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) https://supreme.justia.com/cases/federal/us/319/624/ Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969) https://supreme.justia.com/cases/federal/us/393/503/ Morse v. Frederick, 551 U.S. 393 (2007) https://supreme.justia.com/cases/federal/us/551/393/ Cohen v. California 403, U.S. 15 (1971) https://supreme.justia.com/cases/federal/us/403/15/ Texas v. Johnson, 491 U.S. 397 (1989) https://supreme.justia.com/cases/federal/us/491/397/ Miller v. California, 413 U.S. 15 (1973) https://supreme.justia.com/cases/federal/us/413/15/ Walker v. Texas, Sons of Confederate Veterans, 576 U.S. 200 (2015) https://supreme.justia.com/cases/federal/us/576/200/ Epstein, McGuire, and Walker, 2021. Constitutional Law for a Changing America: Rights, Liberties, and Justice. Thousand Oaks, California: Cq Press, An Imprint Of Sage Publications, Inc.
Freedom of Religion		The right is explicitly protected both in the Bill of Rights, but also in Article VI of the Constitution. This article prohibits religious discrimination in the formation of the government under the No Religious Test Clause. The clause, stating that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States,” promotes the freedom of religion and religious equality in all manners of life, starting from within the government itself (Brownstein and Campbell) REFERENCES Alan E. Brownstein and Jud Campbell, “The No Religious Test Clause,” https://constitutioncenter.org/the-constitution/articles/article-vi/clauses/32
Freedom of the Press		The right is explicitly stated in the Constitution, though challenges and questions towards it have arisen throughout the United States’ legal history. One of the first such challenges were the Alien and Sedition Acts of 1798, which came about out of an increasing aversion towards disloyalty brought about by fears of France’s potential invasion of the United States (Batten, 2010). Signed by John Adams, the acts allowed for the deportation of immigrants originating from a country that the United States was currently at war with, and, crucially, gave the government the ability to punish those who “…shall write, print, utter or publish…any false, scandalous and malicious writing or writings against the government of the United States…” (Congress, 1845). According to Douglas Bradburn, “The clamor against the Alien and Sedition Acts was broad, important, and deeply consequential”, with Thomas Jefferson leading the backlash (Bradburn, 2008, pg. 567). The political and public reaction to curtailments of the first amendment, including the right to freedom of the press were strongly antagonistic from the beginning. The 1964 Supreme Court decision in New York Times v. Sullivan further shows the commitment towards this right. The New York Times published an advertisement containing false information about actions taken by opposers of civil rights which included Alabama police, which the Montgomery, Alabama city commissioner, L.B. Sullivan, then responded by filing suit, claiming that the advertisement harmed his reputation and was libelous (Wermiel, n.d.). Later in 1971 the Supreme Court decided on New York Times Co. V. United States, again in favor of the publication. Sensitive documents about the United States’ involvement in the Vietnam War, named the “Pentagon Papers”, were shared with the publication and the New York Times published it to which the government responded by filing suit, under the justification of prior restraint, a rule that allows the government the ability to review the publication of material and prevent its publication under their discretion (Robertson, n.d.). The Court decided that regardless of the sensitive nature of the documents, the right to free expression and freedom of the press trumped the harm that could be had from the publication of the documents (Ibid.). Bradburn, D. (2008). A Clamor in the Public Mind: Opposition to the Alien and Sedition Acts. The William and Mary Quarterly, 65(3), 565–600. Congress, U. S. (1845). Public Acts of the Fifth Congress, Second Session, Chapter 74. In New York Times v. Sullivan (1964). (n.d.). LII / Legal Information Institute. Retrieved July 7, 2021, from https://www.law.cornell.edu/wex/new_york_times_v_sullivan_(1964) Robertson, S. (n.d.). New York Times Co. V. United States. Retrieved July 9, 2021, from https://www.mtsu.edu/first-amendment/article/505/new-york-times-co-v-united-states Wermiel, S. (n.d.-b). New York Times Co. V. Sullivan. Retrieved July 9, 2021, from https://www.mtsu.edu/first-amendment/article/186/new-york-times-co-v-sullivan
Privacy Rights		In the United States, the right to privacy was not originally codified but established through Supreme Court cases around the 1960s (Privacy, n.d.). Prior to this time, the Court recognized in Snyder v. Massachusetts (1934) that some concepts of fairness are fundamental, but not expressed. In 1965, the Court heard and decided Griswold v. Connecticut. In the majority opinion, Justice William Douglas argues that the Court had previously ruled on cases in which rights were not explicit in the Bill of Rights, but the rights were justifiable to the Court through the First and Fourteenth Amendments (Griswold v. Connecticut, 1965, par. 11). Later in the opinion of the court, he states that in other cases, such as Boyd v. United States (1886), Mapp v. Ohio (1961), and Poe v. Ullman (1961), the court used the ‘penumbras’ of the First, Third, Fourth, Fifth, and Ninth Amendments to make decisions on implicit liberties (Griswold v. CT, 1965, pars. 14-15). Combined, these penumbras create what the Griswold v. Connecticut majority opinion calls “zones of privacy” (Privacy, n.d.). In a concurring Griswold opinion, Justice Arthur Goldberg argues that while liberties extend beyond the Bill of Rights, he, Chief Justice Earl Warren, and Justice William Brennan feel that the Due Process Clause of the Fourteenth Amendment does not include “all of the first eight amendments” (Griswold v. CT, 1965, par. 21). However, in a different concurring opinion, Justice John Marshall Harlan found “[t]he Due Process Clause of the Fourteenth Amendment stands […] on its own bottom” (Griswold v. CT, 1965, par. 53; Privacy, n.d.). Justice Harlan’s concurring opinion became the predominant argument used in later privacy cases (Privacy, n.d.). In 1967, the Supreme Court decided the case of Katz v. United States (Katz v. US, n.d.). Katz, located in Los Angeles, had been using a public phone booth to inform bettors in Boston and Miami, and in an effort to convict him, federal agents tapped the phone booth (Katz v. US, n.d.). A lower court allowed this evidence to be admitted, but Katz claimed it was a violation of the Fourth Amendment (Katz v. US, n.d.). The Supreme Court sided 7-1 with Katz and establishes that “the Fourth Amendment protects people, not places” (Katz v. United States, 1967). In a concurring opinion, Justice Harlan established the Expectation for Privacy Test (Katz v. US, n.d.; Expectation of Privacy, n.d.). This test is two-fold – the individual must have an expectation for privacy which is rooted in law and society finds that expectation for privacy to be reasonable – and has been used as a basis for privacy since (Expectation of Privacy, n.d.). After these two cases, the Supreme Court has continued to extend the right to privacy, notably so in three landmark cases: Eisenstadt v. Baird (1971), Roe v. Wade (1972), and Lawrence v. Texas (2003) through the use of the Fourteenth Amendment and Justice Harlan’s concurring Griswold opinion (Privacy, n.d.). Eisenstadt extended the use of contraceptives beyond married couples to individuals (Privacy, n.d.). Roe extended the right to privacy to the women’s right to have an abortion (Privacy, n.d.). Lawrence v. Texas' overturned Bowers v. Hardwick (1986) and extended privacy to private conduct (Privacy, n.d.). REFERENCES: Expectation of Privacy. (n.d.). Cornell Law School Legal Information Institute. Retrieved Sept. 13, 2021, from https://www.law.cornell.edu/wex/expectation_of_privacy Griswold v. Connecticut, 381 U.S. 479 (1965). https://www.law.cornell.edu/supremecourt/text/381/479 Katz v. United States. (n.d.). Oyez. Retrieved September 13, 2021, from https://www.oyez.org/cases/1967/35 Katz v. United States, 389 U.S. 347 (1967). https://www.law.cornell.edu/supremecourt/text/389/347 Privacy. (n.d.). Cornell Law School Legal Information Institute. Retrieved Sept. 8, 2021, from https://www.law.cornell.edu/wex/privacy Snyder v. Massachusetts, 291 U.S. 97 (1934). https://www.law.cornell.edu/supremecourt/text/291/97
Voting Rights and Suffrage		While certain amendments explicitly address voting rights, the broader interpretation of voting rights as being implicit in the United States Constitution has evolved significantly through judicial decisions and legislative actions. The Supreme Court and other judicial bodies have played a critical role in interpreting these rights and ensuring their protection. The Voting Rights Act of 1965 was a pivotal piece of legislation in the fight to protect voting rights. It aimed to overcome legal barriers at the state and local levels that prevented Black Americans from exercising their right to vote as guaranteed under the 15th Amendment. However, the 2013 Supreme Court Case Shelby County v. Holder successfully challenged the constitutionality of parts of the VRA. The case disputed the constitutionality of Section Four (the Coverage Formula) and Section Five (Preclearance of Changes in Election Laws) of the VRA, which outlined a mandate for states with a history of racial discrimination in voting to “pre-clear” changes in the election process with the Justice Department (Congressional Research Service 2015, 16). The attorneys believed these mandates impeded states’ rights to determining voter eligibility. Ultimately, they won based on an argument that the coverage formula was outdated (Congressional Research Service 2015, 1). The constitutions that do make explicit references to voting rights are state constitutions. Whereas the US Constitution utilizes negative mandates to govern who the government may not disenfranchise, state constitutions directly list who is eligible to vote (Douglas 2014, 89). Article I, Section 2 of the United States Constitution grants states the power to determine voting eligibility (Douglas 2014, 90). Former Supreme Court Justice Scalia asserted that the Elections Clause “empowers Congress to regulate how federal elections are held, but not who may vote in them” (Douglas 2014, 91). What provides this implication of voting rights is that “the U.S. Constitution mentions individual voting rights seven times – in Article I, Section 2 and in the Fourteenth, Fifteenth, Seventeenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments – but none of those provisions actually grant a right to vote to U.S. citizens” (Douglas 2014, 95). The interpretation of voting rights as implicit in the Constitution has been significantly shaped by judicial decisions and expanded understanding of constitutional amendments. Legislative actions, such as the Voting Rights Act, have further reinforced these rights, although challenges and debates continue regarding their scope and protection. These elements underscore the Constitution’s role in both explicitly and implicitly protecting the right to vote as a pillar of democracy. References Congressional Research Service. “The Voting Rights Act of 1965: Background and Overview.” (2015). https://crsreports.congress.gov/product/pdf/R/R43626/15#:~:text=The%20Voting%20Rights%20Act%20was,preclearance%20of%20new%20laws%20in. Douglas, J. “The Right to Vote Under State Constitutions.” Vanderbilt Law Review 89: 89-149 (2014). https://scholarship.law.vanderbilt.edu/vlr/vol67/iss1/1. Persily, N and Mann, T. “Shelby County v. Holder and the Future of the Voting Rights Act.” Brookings (2013). https://www.brookings.edu/articles/shelby-county-v-holder-and-the-future-of-the-voting-rights-act/. U.S. Constitution. https://www.senate.gov/about/origins-foundations/senate-and-constitution/constitution.htm.