Midterm Study Guide

Which case held that the Takings Clause and the Bill of Rights do NOT apply to the states?

Barron v. Baltimore

Which case applied the CPD test to uphold the Sedition Acts (1918 amendment to the Espionage Act)?

Abrams v. United States

"If the government be adopted it is probable General Washington will be the President of the United States. This will ensure a wise choice of men to administer the government, and a good administration. A good administration will conciliate the confidence and affection of the people, and perhaps enable the government to acquire more consistency than the proposed constitution seems to promise for so great a country. It may then triumph altogether over the State governments, and reduce them to an entire subordination, dividing the larger States into smaller districts. The organs of the general government may also acquire additional strength."

Alexander Hamilton

"If this should not be the case in the course of a few years, it is probable that the contests about the boundaries of power between the particular governments and the general government, and the momentum of the larger States in such contests, will produce a dissolution of the Union. This, after all, seems to be the most likely result."

Alexander Hamilton

"The new Constitution has in favor of its success these circumstances: A very great weight of influence of the persons who framed it, particularly in the universal popularity of General Washington. The good-will of the commercial interest throughout the States, which will give all its efforts to the establishment of a government capable of regulating, protecting, and extending the commerce of the Union. The good-will of most men of property in the several States, who wish a government of the Union able to protect them against domestic violence, and the depredations which the democratic spirit is apt to make on property, and who are besides anxious for the respectability of the nation. The hopes of the creditors of the United States, that a general government possessing the means of doing it, will pay the debt of the Union. A strong belief in the people at large of the insufficiency of the present Confederation to preserve the existence of the Union, and of the necessity of the Union to their safety and prosperity; of course, a strong desire of a change, and a predisposition to receive well the propositions of the convention."

Alexander Hamilton

Which case held that the Takings Clause is meant to prevent govt from forcing a few people to bear the burden that the public as a whole should bear?

Armstrong v. United States

Which case held that the CPPA was overly broad and that virtual child porn is different from actual child porn?

Ashcroft v. Free Speech Coalition

"By the law of the twelve tables at Rome, libels, which affected the reputation of another, were made a capital offence: but, before the reign of Augustus, the punishment became corporal only...In a civil action, we may remember, a libel must appear to be false, as well as scandalous; for, if the charge be true, the plaintiff has received no private injury, and has no ground to demand a compensation for himself"

Blackstone

Which case held that anti-discrimination laws do NOT prevent private groups from expelling members based on certain criteria?

Boy Scouts of America v. Dale

Which case developed the 'incitement of imminent lawless action' test?

Brandenburg v. Ohio

"Freedom of speech is the great bulwark of liberty; they prosper and die together: And it is the terror of traitors and oppressors, and a barrier against them. It produces excellent writers, and encourages men of fine genius. Tacitus tells us, that the Roman commonwealth bred great and numerous authors, who writ with equal boldness and eloquence: But when it was enslaved, those great wits were no more. Tyranny had usurped the place of equality, which is the soul of liberty, and destroyed publick courage. The minds of men, terrified by unjust power, degenerated into all the vileness and methods of servitude: Abject sycophancy and blind submission grew the only means of preferment, and indeed of safety; men durst not open their mouths, but to flatter."

Cato Letter #15

"It will be sufficient to observe briefly that the sovereignties in Europe, and particularly in England, exist on feudal principles. That system considers the Prince as the sovereign, and the people as his subjects; it regards his person as the object of allegiance, and excludes the idea of his being on an equal footing with a subject, either in a court of justice or elsewhere. That system contemplates him as being the fountain of honor and authority, and from his grace and grant derives all franchises, immunities and privileges; it is easy to perceive that such a sovereign could not be amenable to a court of justice, or subjected to judicial control and actual constraint. It was of necessity, therefore, that suability became incompatible with such sovereignty. Besides, the Prince having all the Executive powers, the judgment of the courts would, in fact, be only monitory, not mandatory to him, and a capacity to be advised is a distinct thing from a capacity to be sued. The same feudal ideas run through all their jurisprudence, and constantly remind us of the distinction between the Prince and the subject. No such ideas obtain here; at the Revolution, the sovereignty devolved on the people, and they are truly the sovereigns of the country, but they are sovereigns without subjects (unless the African slaves among us may be so called), and have none to govern but themselves."

Chisolm v. Georgia (John Jay)

Which case established an individual right to bear arms for defense, outside of relevancy to militias?

D.C. v. Heller

Which case was decided shortly after Schenck that applied the CPD test to uphold the Espionage Act?

Debs v. United States

"Individual liberty in modern times can hardly be traced back farther than the England of the seventeenth century. It appeared first, as it probably always does, as a by-product of a struggle for power rather than as the result of deliberate aim. But it remained long enough for its benefits to be recognized. And for over two hundred years the preservation and perfection of individual liberty became the guiding ideal in that country, and its institutions and traditions the model for the civilized world."

FA Hayek

Our cases, it is true, have indicated that there is a single, extremely narrow class of cases in which the First Amendment's ban on prior judicial restraint may be overridden. Our cases have thus far indicated that such cases may arise only when the Nation "is at war...Thus, only governmental allegation and proof that publication must inevitably, directly, and immediately cause the occurrence of an event...can support even the issuance of an interim restraining order."

Justice Burger (NYT v US concurrence, exception to his general rule)

"The proposed Constitution, therefore, is, in strictness, neither a national nor a federal Constitution, but a composition of both. In its foundation it is federal, not national; in the sources from which the ordinary powers of the government are drawn, it is partly federal and partly national; in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national; and, finally, in the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national."

Federalist 39 (Madison)

"[T]he chief purpose of [the First Amendment's] guaranty [is] to prevent previous restraints upon publication."

Justice Burger (NYT v US concurrence, general rule)

But it is said that the laws of the Union are to be the SUPREME LAW of the land. But what inference can be drawn from this, or what would they amount to, if they were not to be supreme? It is evident they would amount to nothing. A LAW, by the very meaning of the term, includes supremacy. It is a rule which those to whom it is prescribed are bound to observe. This results from every political association. If individuals enter into a state of society, the laws of that society must be the supreme regulator of their conduct. If a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers entrusted to it by its constitution, must necessarily be supreme over those societies, and the individuals of whom they are composed. It would otherwise be a mere treaty, dependent on the good faith of the parties, and not a government, which is only another word for POLITICAL POWER AND SUPREMACY. But it will not follow from this doctrine that acts of the large society which are NOT PURSUANT to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such."

Federalist 33 (Hamilton)

"It may be added that without this supplemental provision, the great and essential power of regulating foreign commerce would have been incomplete and ineffectual. A very material object of this power was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter...The necessity of a superintending authority over the reciprocal trade of confederated States, has been illustrated by other examples as well as our own. In Switzerland, where the Union is so very slight, each canton is obliged to allow to merchandises a passage through its jurisdiction into other cantons, without an augmentation of the tolls. In Germany it is a law of the empire, that the princes and states shall not lay tolls or customs on bridges, rivers, or passages, without the consent of the emperor and the diet; though it appears from a quotation in an antecedent paper, that the practice in this, as in many other instances in that confederacy, has not followed the law, and has produced there the mischiefs which have been foreseen here. Among the restraints imposed by the Union of the Netherlands on its members, one is, that they shall not establish imposts disadvantageous to their neighbors, without the general permission."

Federalist 42 (Madison)

"The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State."

Federalist 45 (Madison)

Let us not insult the free and gallant citizens of America with the suspicion, that they would be less able to defend the rights of which they would be in actual possession, than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors. Let us rather no longer insult them with the supposition that they can ever reduce themselves to the necessity of making the experiment, by a blind and tame submission to the long train of insidious measures which must precede and produce it.

Federalist 46 (Madison)

Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it.

Federalist 46 (Madison)

"A good government implies two things: first, fidelity to the object of government, which is the happiness of the people; secondly, a knowledge of the means by which that object can be best attained. Some governments are deficient in both these qualities; most governments are deficient in the first. I scruple not to assert, that in American governments too little attention has been paid to the last. The federal Constitution avoids this error; and what merits particular notice, it provides for the last in a mode which increases the security for the first."

Federalist 62 (Madison)

"Another advantage accruing from this ingredient in the constitution of the Senate is, the additional impediment it must prove against improper acts of legislation. No law or resolution can now be passed without the concurrence, first, of a majority of the people, and then, of a majority of the States."

Federalist 62 (Madison)

"The equal vote allowed to each State is at once a constitutional recognition of the portion of sovereignty remaining in the individual States, and an instrument for preserving that residuary sovereignty. So far the equality ought to be no less acceptable to the large than to the small States; since they are not less solicitous to guard, by every possible expedient, against an improper consolidation of the States into one simple republic."

Federalist 62 (Madison)

"The truth is, after all the declamations we have heard, that the Constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS. The several bills of rights in Great Britain form its Constitution, and conversely the constitution of each State is its bill of rights. And the proposed Constitution, if adopted, will be the bill of rights of the Union."

Federalist 84 (Hamilton)

Chaplinsky v New Hampshire

Fighting words that incite immediate violence are not protected.

"He wished the plan had been prefaced with a Bill of Rights, & would second a Motion if made for the purpose. It would give great quiet to the people; and with the aid of the State declarations, a bill might be prepared in a few hours."

George Mason

"There is no Declaration of Rights, and the laws of the general government being paramount to the laws and constitution of the several States, the Declarations of Rights in the separate States are no security."

George Mason

"Under their own construction of the general clause, at the end of the enumerated powers, the Congress may grant monopolies in trade and commerce, constitute new crimes, inflict unusual and severe punishments, and extend their powers as far as they shall think proper; so that the State legislatures have no security for the powers now presumed to remain to them, or the people for their rights."

George Mason

Which case incorporated the 1st amendment protections into the 14th amendment (making the 1st amendment apply to state govt)?

Gitlow v. New York

Which case held that demonstration organizers do not have to allow all people to participate in demonstrations (set up framework for Dale case)?

Hurley v. Irish-American Gay, Lesbian...Group of Boston

"The papers inclosed will shew that the nauseous project of amendments has not yet been either dismissed or despatched. We are so deep in them now, that right or wrong some thing must be done."

James Madison (letter to Richard Peters)

"Had the people, by a solemn instrument, delegated particular powers to the Crown at the formation of their government, surely the Crown, which in that case could claim under that instrument only, could not have contended for more power than was conveyed by it."

James Iredell

"...let it be supposed for a moment that indefinite power should be given to the General Legislature, and the States reduced to corporations dependent on the General Legislature. Why should it follow that the General Government would take from the States any branch of their power as far as its operation was beneficial, and its continuance desirable to the people."

James Madison (Debate on Federalism)

"All the examples of other confederacies prove the greater tendency in such systems to anarchy than to tyranny, to a disobedience of the members than to usurpations of the federal head. Our own experience had fully illustrated this tendency."

James Madison (Debate on Federalism)

"Supposing therefore a tendency in the General Government to absorb the State Governments no fatal consequence could result. Taking the reverse of the supposition, that a tendency should be left in the State Governments towards an independence on the General Government and the gloomy consequences need not be pointed out. The imagination of them, must have suggested to the States the experiment we are now making to prevent the calamity, and must have formed the chief motive with those present to undertake the arduous task."

James Madison (Debate on Federalism)

"The relation of a General Government to State Governments is paralle."

James Madison (Debate on Federalism)

"It may be less necessary in a republic, than a Monarchy, & in a federal Govt. than the former, but it is in some degree rational in every Govt., since in every Govt. power may oppress, and declarations on paper, tho' not an effectual restraint, are not without some influence. 2. In many States the Constn. was adopted under a tacit compact in favr. of some subsequent provisions on this head. In Virga. It would have been certainly rejected, had no assurances been given by its advocates that such provisions would be pursued. As an honest man I feel my self bound by this consideration. 3. If the Candidates in Virga. for the House of Reps. had not taken this conciliary ground at the election, that State would have [been] represented almost wholly by disaffected characters, instead of the federal reps. now in Congs. 4. If amendts. had not been proposed from the federal side of the House, the proposition would have come within three days, from the adverse side. It is certainly best that they should appear to be the free gift of the friends of the Constitution rather than to be extorted by the address & weight of its enemies. 5. It will kill the opposition every where... 6. If no amendts. be proposed the language of antifedl. leaders to the people, will be, we advised you not to adopt the Constn. witht. previous amendts—You listened to those who told you that subsequent securities for your rights would be most easily obtained—We urged you to insist on a Convention as the only effectual mode of obtaining these—You yielded to the assurances of those who told you that a Convention was unecessary, that Congs. wd. be the proper channel for getting what was wanted. &c &c. ... 7. Some amendts. are necssy for N. Carolina. I am so informed by the best authorities in that State."

James Madison (letter to Richard Peters)

"It has been remarked that there is a tendency in all Governments to an augmentation of power at the expence of liberty. But the remark as usually understood does not appear to me well founded. Power when it has attained a certain degree of energy and independence goes on generally to further degrees. But when below that degree, the direct tendency is to further degrees of relaxation, until the abuses of liberty beget a sudden transition to an undue degree of power. With this explanation the remark may be true; and in the latter sense only is it in my opinion applicable to the Governments in America. It is a melancholy reflection that liberty should be equally exposed to danger whether the Government have too much or too little power, and that the line which divides these extremes should be so inaccurately defined by experience."

James Madison (letter to TJ)

"My own opinion has always been in favor of a bill of rights; provided it be so framed as not to imply powers not meant to be included in the enumeration. At the same time I have never thought the omission a material defect, nor been anxious to supply it even by subsequent3 amendment, for any other reason than that it is anxiously desired by others. I have favored it because I supposed it might be of use, and if properly executed could not be of disservice."

James Madison (letter to TJ)

"What use then it may be asked can a bill of rights serve in popular Governments? I answer the two following which though less essential than in other Governments, sufficiently recommend the precaution. 1. The political truths declared in that solemn manner acquire by degrees the character of fundamental maxims of free Government, and as they become incorporated with the national sentiment, counteract the impulses of interest and passion. 2. Altho' it be generally true as above stated that the danger of oppression lies in the interested majorities of the people rather than in usurped acts of the Government, yet there may be occasions on which the evil may spring from the latter sources; and on such, a bill of rights will be a good ground for an appeal to the sense of the community."

James Madison (letter to TJ)

"That the people have an indubitable, unalienable, and indefeasible right to reform or change their government, whenever it be found adverse or inadequate to the purposes of its institution....The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience by in any manner, or on any pretext infringed."

James Madison (speech about amendments)

"After the first actual enumeration, there shall be one representative for every thirty thousand, until the number amount to after which the proportion shall be so regulated by congress"

James Madison (speech about amendments) NOT RATIFIED

"But no law varying the compensation last ascertained shall operate before the next ensuing election of representatives."

James Madison (speech about amendments) NOT RATIFIED

"There are two kinds of government - that where general power is intended to be given to the legislature, and that where the powers are particularly enumerated. In the last case, the implied result is, that nothing more is intended to be given than what is so enumerated, unless it results from the nature of the government itself. On the other hand, when general legislative powers are given, then the people part with their authority, and, on the gentleman's principle of government, retain nothing. But in a government like the proposed one, there can be no necessity for a bill of rights, for, on my principle, the people never part with their power. Enumerate all the rights of men! I am sure, sir, that no gentleman in the late Convention would have attempted such a thing."

James Wilson

"We can imagine no more appropriate response to burning a flag than waving one's own, no better way to counter a flag burner's message than by saluting the flag that burns, no surer means of preserving the dignity even of the flag that burned than by -- as one witness here did -- according its remains a respectful burial. We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents."

Justice Brennan (Texas holding)

"The basis of our governments being the opinion of the people, the very first object should be to keep that right; and were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter."

Jefferson to Carrington

"Wherever law ends, tyranny begins, if the law is transgressed to another's harm. Whoever in authority exceeds the power given him by the law, and makes use of the force he has under his command to impose that upon the subject which the law does not allow, ceases in that to be a magistrate. Acting without authority, he may be opposed, as may any other man who by force invades the rights of another."

John Locke

Now the only way to avoid this shipwreck, and to provide for our posterity, is to follow the counsel of Micah, to do justly, to love mercy, to walk humbly with our God. For this end, we must be knit together, in this work, as one man. We must entertain each other in brotherly affection. We must be willing to abridge ourselves of our superfluities, for the supply of others' necessities. We must uphold a familiar commerce together in all meekness, gentleness, patience and liberality. We must delight in each other; make others' conditions our own; rejoice together, mourn together, labor and suffer together, always having before our eyes our commission and community in the work, as members of the same body.

John Winthrop

"The clear implication has been that any such a compulsion to publish that which "reason' tells them should not be published" is unconstitutional. A responsible press is an undoubtedly desirable goal, but press responsibility is not mandated by the Constitution, and, like many other virtues, it cannot be legislated."

Justice Burger (Miami Herald opinion)

So shall we keep the unity of the spirit in the bond of peace. The Lord will be our God, and delight to dwell among us, as His own people, and will command a blessing upon us in all our ways, so that we shall see much more of His wisdom, power, goodness and truth, than formerly we have been acquainted with. We shall find that the God of Israel is among us, when ten of us shall be able to resist a thousand of our enemies; when He shall make us a praise and glory that men shall say of succeeding plantations, "may the Lord make it like that of New England." For we must consider that we shall be as a city upon a hill. The eyes of all people are upon us. So that if we shall deal falsely with our God in this work we have undertaken, and so cause Him to withdraw His present help from us, we shall be made a story and a by-word through the world. We shall open the mouths of enemies to speak evil of the ways of God, and all professors for God's sake. We shall shame the faces of many of God's worthy servants, and cause their prayers to be turned into curses upon us till we be consumed out of the good land whither we are going.

John Winthrop (cont.)

Englishmen had no right to have arms until 1689, but a duty to have them there certainly was, from the proverbial "time out of mind." With no standing army until late in the seventeenth century and no regular police force until the nineteenth century, ordinary Englishmen were compelled to shoulder a variety of peacekeeping tasks. Men were expected to defend themselves and their families and, if need be, their neighbors as well. But the duty was not merely defensive. Anyone who discovered a crime was required to raise a "hue and cry" and join, "ready apparelled," in pursuit of the culprit if necessary "from town to town, and from county to county" on pain of fine and imprisonment"

Joyce Malcolm

In 1765 William Blackstone, in his Commentaries on the Laws of England, set the final stamp of approval on the right of citizens to be armed. After listing the rights of Englishmen, he identified five auxiliary rights designed as "barriers, to protect and maintain inviolate" the great and primary rights. The fifth of these, he wrote, "is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law ... and is, indeed, a publick allowance under due restrictions, of the natural right of resistance and self preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression"

Joyce Malcolm

"In Heller, we held that the Second Amendment protects the right to possess a handgun in the home for the purpose of self-defense. Unless considerations of stare decisis counsel otherwise, a provision of the Bill of Rights that protects a right that is fundamental from an American perspective applies equally to the Federal Government and the States. We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings."

Justice Alito (McDonald opinion)

"Southern resistance, Presidential vetoes, and this Court's pre-Civil-War precedent persuaded Congress that a constitutional amendment was necessary to provide full protection for the rights of blacks."

Justice Alito (McDonald opinion, original understanding of 14th A)

"This Court has recognized that the States have a legitimate interest in prohibiting dissemination or exhibition of obscene material when the mode of dissemination carries with it a significant danger of offending the sensibilities of unwilling recipients or of exposure to juveniles...obscenity is to be defined by reference to 'community standards,' it meant community standards -- not a national standard"

Justice Burger (Miller v CA opinion)

"In Cox v. Louisiana, for example, the Court clearly stated that the rights of free speech and assembly "do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time.""

Justice Black (Tinker dissent)

"The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with "actual malice" -- that is, with knowledge that it was false or with reckless disregard of whether it was false or not."

Justice Brennan (NYT v. Sullivan opinion, actual malice test)

"These excerpts sufficiently show that, while the immediate occasion for this particular outbreak of lawlessness on the part of the defendant alien anarchists may have been resentment caused by our Government's sending troops into Russia as a strategic operation against the Germans on the eastern battle front, yet the plain purpose of their propaganda was to excite, at the supreme crisis of the war, disaffection, sedition, riots, and, as they hoped, revolution, in this country for the purpose of embarrassing, and, if possible, defeating the military plans of the Government in Europe."

Justice Clarke (Abrams opinion)

"Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest."

Justice Douglass (Terminiello holding)

"If a regulation were adopted by school officials forbidding discussion of the Vietnam conflict, or the expression by any student of opposition to it anywhere on school property except as part of a prescribed classroom exercise, it would be obvious that the regulation would violate the constitutional rights of students, at least if it could not be justified by a showing that the students' activities would materially and substantially disrupt the work and discipline of the school. In the circumstances of the present case, the prohibition of the silent, passive "witness of the armbands," as one of the children called it, is no less offensive to the Constitution's guarantees."

Justice Fortas (Tinker opinion)

"Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly. . . . It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the 'liberty' assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech."

Justice Harlan (NAACP opinion)

"School officials should be accorded the widest authority in maintaining discipline and good order in their institutions. To translate that proposition into a workable constitutional rule, I would, in cases like this, cast upon those complaining the burden of showing that a particular school measure was motivated by other than legitimate school concerns -- for example, a desire to prohibit the expression of an unpopular point of view, while permitting expression of the dominant opinion. Finding nothing in this record which impugns the good faith of respondents in promulgating the armband regulation, I would affirm the judgment below."

Justice Harlan (Tinker dissent)

"But, as against dangers peculiar to war, as against others, the principle of the right to free speech is always the same. It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned. Congress certainly cannot forbid all effort to change the mind of the country. Now nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger that its opinions would hinder the success of the government."

Justice Holmes (Abrams dissent)

"A law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with such powers; and, therefore, it cannot be presumed that they have done it (Calder v. Bull). Today the Court abandons this long-held, basic limitation on government power. Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded—i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public—in the process...Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory...

Justice O'Connor (Kelo dissent)

"I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country. I wholly disagree with the argument of the Government that the First Amendment left the common law as to seditious libel in force. History seems to me against the notion. I had conceived that the United States, through many years, had shown its repentance for the Sedition Act of 1798, by repaying fines that it imposed. Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception to the sweeping command, "Congress shall make no law . . . abridging the freedom of speech." Of course, I am speaking only of expressions of opinion and exhortations, which were all that were uttered here"

Justice Holmes (Abrams dissent)

"We admit that, in many places and in ordinary times, the defendants, in saying all that was said in the circular, would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree."

Justice Holmes (Schenck)

"When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right. It seems to be admitted that, if an actual obstruction of the recruiting service were proved, liability for words that produced that effect might be enforced. The statute of 1917, in § 4, punishes conspiracies to obstruct, as well as actual obstruction. If the act (speaking, or circulating a paper), its tendency, and the intent with which it is done are the same, we perceive no ground for saying that success alone warrants making the act a crime."

Justice Holmes (Schenck)

"The right [to speech] is not an absolute one, and the State, in the exercise of its police power, may punish the abuse of this freedom. There is no question but that the State may thus provide for the punishment of those who indulge in utterances which incite to violence and crime and threaten the overthrow of organized government by unlawful means. There is no constitutional immunity for such conduct abhorrent to our institutions.... [But] A statute which upon its face, and authoritatively construed, is so vague and indefinite as to permit the punishment of the fair use of this opportunity is repugnant to the guaranty of liberty contained in the Fourteenth Amendment."

Justice Hughes (Stromberg opinion)

"This Court has gone far toward accepting the doctrine that civil liberty means the removal of all restraints from these crowds, and that all local attempts to maintain order are impairments of the liberty of the citizen. The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact."

Justice Jackson (Terminiello dissent)

As a general rule, pornography can be banned only if obscene, but under Ferber, pornography showing minors can be proscribed whether or not the images are obscene under the definition set forth in Miller v. California. Ferber recognized that "[t]he Miller standard, like all general definitions of what may be banned as obscene, does not reflect the State's particular and more compelling interest in prosecuting those who promote the sexual exploitation of children."

Justice Kennedy (Ashcroft opinion)

"Lest any confusion on the point remain, we reaffirm today that a regulation of the time, place, or manner of protected speech must be narrowly tailored to serve the government's legitimate, content-neutral interests, but that it need not be the least restrictive or least intrusive means of doing so."

Justice Kennedy (Ward opinion)

"Lest any confusion on the point remain, we reaffirm today that a regulation of the time, place, or manner of protected speech must be narrowly tailored to serve the government's legitimate, content-neutral interests, but that it need not be the least restrictive or least intrusive means of doing so...So true will it be found, that to censure the licentiousness, is to maintain the liberty, of the press."

Justice Kennedy (Ward opinion)

"In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense."

Justice McReynolds (US v. Miller opinion)`

"Having determined that the Boy Scouts is an expressive association and that the forced inclusion of Dale would significantly affect its expression, we inquire whether the application of New Jersey's public accommodations law to require that the Boy Scouts accept Dale as an assistant scoutmaster runs afoul of the Scouts' freedom of expressive association. We conclude that it does."

Justice Rehnquist (Boy Scouts opinion)

"While the law is free to promote all sorts of conduct in place of harmful behavior, it is not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may strike the government."

Justice Rehnquist (Boy Scouts opinion)

"A State may penalize utterances which openly advocate the overthrow of the representative and constitutional form of government of the United States and the several States, by violence or other unlawful means. In short, this freedom does not deprive a State of the primary and essential right of self-preservation, which, so long as human governments endure, they cannot be denied."

Justice Sanford (Gitlow opinion)

"It is a fundamental principle, long established, that the freedom of speech and of the press which is secured by the Constitution does not confer an absolute right to speak or publish, without responsibility, whatever one may choose, or an unrestricted and unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom. That a State in the exercise of its police power may punish those who abuse this freedom by utterances inimical to the public welfare, tending to corrupt public morals, incite to crime, or disturb the public peace, is not open to question."

Justice Sanford (Gitlow opinion)

In sum, we hold that the District's ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.

Justice Scalia (Heller opinion)

We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.

Justice Scalia (Heller opinion, on policy choices and constitutional rights)

"We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding "interest-balancing" approach....A constitutional guarantee subject to future judges' assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.

Justice Scalia (Heller opinion, response to Breyer dissent)

There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment's right of free speech was not. Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.

Justice Scalia (Heller opinion, response to Breyer dissent)

"We hold that such a mandate violates the First Amendment....Our holding today rests not on any particular view about the Council's message but on the Nation's commitment to protect freedom of speech. Disapproval of a private speaker's statement does not legitimize use of the Commonwealth's power to compel the speaker to alter the message by including one more acceptable to others. "

Justice Souter (Hurley opinion)

If such "economic development" takings are for a "public use," any taking is, and the Court has erased the Public Use Clause from our Constitution, ... In my view, the Public Use Clause, originally understood, is a meaningful limit on the government's eminent domain power. Our cases have strayed from the Clause's original meaning, and I would reconsider them......Long ago, William Blackstone wrote that "the law of the land ... postpone[s] even public necessity to the sacred and inviolable rights of private property." The Framers embodied that principle in the Constitution, allowing the government to take property not for "public necessity," but instead for "public use." Defying this understanding, the Court replaces the Public Use Clause with a " '[P]ublic [P]urpose' " Clause, ante, at 9-10 (or perhaps the "Div, a restriction that is satisfied, the Court instructs, so long as the purpose is "legitimate" and the means "not irrational,". This deferential shift in phraseology enables the Court to hold, against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is for a "public use."

Justice Thomas (Kelo dissent)

"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. Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds."

Justice Thurgood Marshall (Stanley opinion)

"A government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression, and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. We find that the 1965 Amendment to § 12(b)(3) of the Universal Military Training and Service Act meets all of these requirements, and consequently that O'Brien can be constitutionally convicted for violating it."

Justice Warren (O'Brien holding and test)

Which case held that economic benefits constitute "public use" that the govt can use to justify eminent domain?

Kelo v. New London

"Although popular sovereignty was a new concept in American political theory, by 1787 it had nevertheless become the dominant understanding of the legitimate source of government authority. Vestiges of the older system remained, however, including the assumption that "all rights not expressly and unequivocally reserved to the people are impliedly and incidentally relinquished to rulers. State governments, for example, were presumed to have general authority to act on the people's behalf absent an express restriction in the state constitutions' declarations of rights. It was due to this vision of expressly retained rights that the Antifederalists objected to the omission of a Bill of Rights in the proposed Constitution. In response, the Federalists flipped this vision completely around and, stressing the emergent theory of popular sovereignty, insisted that all powers and rights were retained to the people in the states other than those expressly delegated away. This was the vision of federal power presented to the state conventions, and, as James Madison insisted his entire life, this was the vision state conventions reasonably relied upon in ratifying the Federal Constitution."

Kurt Lash

"[This] calls into question the traditional reading of John Marshall's opinion in McCulloch and its place in our understanding of the original meaning of federal power. Marshall's reading of the Tenth Amendment adopted a deeply contested understanding of "the people" and rejected the principle of expressly delegated power which had been promised by the proponents of the Constitution. Although Marshall correctly identified the original understanding that Congress would have implied powers, his rejection of a narrow interpretation of those implied powers conflicts with the historical record and the original understanding of retained sovereign power and rights."

Kurt Lash

No free man is to be arrested, or imprisoned, or disseised, or outlawed, or exiled, or in any other way ruined, nor will we go against him or send against him, except by the lawful judgment of his peers or by the law of the land.

Magna Carta section 39

"For if the Pope acts contrary to the Scriptures, we are bound to stand by the Scriptures, to punish and to constrain him. Here each member is commanded to take care for the other; much more then should we do this, if it is a ruling member of the community that does evil, which by its evil-doing causes great harm and offence to the others...Therefore when need requires, and the Pope is a cause of offence to Christendom, in these cases whoever can best do so, as a faithful member of the whole body, must do what he can to procure a true free council. This no one can do so well as the temporal authorities, especially since they are fellow-Christians, fellow-priests"

Martin Luther

Which case incorporated the 2nd Amendment under the 14th Amendment?

McDonald v. Chicago

Which case held that newspapers don't have to publish replies to editorials that people disagree with?

Miami Herald v. Tornillo

Which case gave a definition for obscenity and reaffirmed Roth?

Miller v. California

Which case held that freedom of association is part of liberty under the 14th amendment?

NAACP v. Alabama

Which case held that the 1st Amendment overrides prior restraint so that the Pentagon Papers could be published?

NYT Co. v. United States

Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity. The Government "thus carries a heavy burden of showing justification for the imposition of such a restraint."

NYT v. U.S. holding (per curiam opinion)

Which case held that actual malice must exist to recover from a libel suit (actual malice test)?

New York Times CO. v. Sullivan

"We are here confronted with a statute which, by its own words and as applied, purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action. Such a statute falls within the condemnation of the First and Fourteenth Amendments."

Opinion of the Court in Brandenburg (per curiam)

Which case held that if property is regulated too much, it is a taking and is unconstitutional?

Pennsylvania Coal Co. v. Mahon

"Fifthly. All civil states, with their officers of justice, in their respective constitutions and administrations, are proved essentially civil, and therefore not judges, governors, or defenders of the spiritual, or Christian, state and worship. Sixthly. It is the will and command of God that, since the coming of his Son the Lord Jesus, a permission of the most Paganish, Jewish, Turkish, or anti-christian consciences and worships be granted to all men in all nations and countries: and they are only to be fought against with that sword which is only, in soul matters, able to conquer: to wit, the sword of God's Spirit, the word of God."

Roger Williams

Which case held that obscenity is not protected speech?

Roth v. United States

"Every man ... should have the right to bear arms for the defense of himself and family and his homestead. And if the cabin door of the freedman is broken open and the intruder enters for purposes as vile as were known to slavery, then should a well-loaded musket be in the hand of the occupant to send the polluted wretch to another world, where his wretchedness will forever remain complete....A clear majority of the States in 1868, therefore, recognized the right to keep and bear arms as being among the foundational rights necessary to our system of Government. In sum, it is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty."

Sam Pomeroy

"The two sons of Charles the first, after the death of Oliver Cromwell, reigned in their turns; but by copying after their father, their administration of government was grievous to their subjects, and infamous abroad. Charles the second indeed reign'd till he died; but his brother James was oblig'd to abdicate the throne, which made room for William the third, and his royal consort Mary, the daughter of the unfortunate James--This was the fate of a race of Kings, bigotted to the greatest degree to the doctrines of slavery and regardless of the natural, inherent, divinely hereditary and indefeasible rights of their subjects."

Samuel Adams

At the revolution, the British constitution was again restor'd to its original principles, declared in the bill of rights; which was afterwards pass'd into a law, and stands as a bulwark to the natural rights of subjects. "To vindicate these rights, says Mr. Blackstone, when actually violated or attack'd, the subjects of England are entitled first to the regular administration and free course of justice in the courts of law--next to the right of petitioning the King and parliament for redress of grievances--and lastly, to the right of having and using arms for self-preservation and defence." These he calls "auxiliary subordinate rights, which serve principally as barriers to protect and maintain inviolate the three great and primary rights of personal security, personal liberty and private property": And that of having arms for their defence he tells us is "a public allowance, under due restrictions, of the natural right of resistance and self preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression."

Samuel Adams

But there are some persons, who would, if possibly they could, perswade the people never to make use of their constitutional rights or terrify them from doing it. No wonder that a resolution of this town to keep arms for its own defence, should be represented as having at bottom a secret intention to oppose the landing of the King's troops: when those very persons, who gave it this colouring, had before represented the peoples petitioning their Sovereign, as proceeding from a factious and rebellious spirit; and would now insinuate that there is an impropriety in their addressing even a plantation Governor upon public business--Such are the times we are fallen into!

Samuel Adams

How little do those persons attend to the rights of the constitution, if they know anything about them, who find fault with a late vote of this town, calling upon the inhabitants to provide themselves with arms for their defence at any time; but more especially, when they had reason to fear, there would be a necessity of the means of self preservation against the violence of oppression.--Every one knows that the exercise of the military power is forever dangerous to civil rights; and we have had recent instances of violences that have been offer'd to private subjects, and the last week, even to a magistrate in the execution of his office!--Such violences are no more than might have been expected from military troops: A power, which is apt enough at all times to take a wanton lead, even when in the midst of civil society; but more especially so, when they are led to believe that they are become necessary, to awe a spirit of rebellion, and preserve peace and good order.

Samuel Adams

"A republican, or free government, can only exist where the body of the people are virtuous, and where property is pretty equally divided; in such a government the people are the sovereign and their sense or opinion is the criterion of every public measure; for when this ceases to be the case, the nature of the government is changed, and an aristocracy, monarchy or despotism will rise on its ruin."

Samuel Bryan (Centinel I)

"But if, imitating the constitution of Pennsylvania, you vest all the legislative power in one body of men (separating the executive and judicial) elected for a short period, and necessarily excluded by rotation from permanency, and guarded from precipitancy and surprise by delays imposed on its proceedings, you will create the most perfect responsibility for then, whenever the people feel a grievance they cannot mistake the authors, and will apply the remedy with certainty and effect, discarding them at the next election...This tie of responsibility will obviate all the dangers apprehended from a single legislature, and will the best secure the rights of the people."

Samuel Bryan (Centinel I)

"Your present frame of government, secures to you a right to hold yourselves, houses, papers and possessions free from search and seizure, and therefore warrants granted without oaths or affirmations first made...Your constitution further provides "that in controversies respecting property, and in suits between man and man, the parties have a right to trial by jury, which ought to be held sacred." It also provides and declares. "that the people have a right of FREEDOM OF SPEECH, and of WRITING and PUBLISHING their sentiments, therefore THE FREEDOM OF THE PRESS OUGHT NOT TO BE RESTRAINED. " The constitution of Pennsylvania is yet in existence, as yet you have the right to freedom of speech, and of publishing your sentiments. How long those rights will appertain to you, you yourselves are called upon to say, whether your houses shall continue to be your castles; whether your papers, your persons and your property, are to be held sacred and free from general warrants, you are now to determine. Whether the trial by jury is to continue as your birth-right, the freemen of Pennsylvania, nay, of all America, are now called upon to declare.

Samuel Bryan (Centinel I)

Which case established the clear and present danger test to improve the bad tendency test?

Schenck v. United States

A PEOPLE who would stand fast in their liberty, should furnish themselves with weapons proper for their defense, and learn the use of them. It is indeed an hard case, that those who are happy in the blessings of providence, and disposed to live peaceably with all men, should be obliged to keep up the idea of blood and slaughter, and expend their time and treasure to acquire the arts and instruments of death. But this is a necessity which the depravity of human nature has laid upon every state. Nor was there ever a people that continued, for any considerable time, in the enjoyment of liberty, who were not in a capacity to defend themselves against invaders

Simeon Howard

IN some nations the method has been to trust for defence and security to what is called a STANDING ARMY; a number of men paid by the public, to devote themselves wholly to the mili|tary profession; while the body of the people fol|lowed their peaceable employments, without pay|ing any attention to the art of war. BUT this has ever been thought, by the wise and prudent, a precarious defence.

Simeon Howard

SO much depends upon the military art, in the present day, that no people can reason|ably expect to defend themselves successfully without it. However numerous they may be, if they are unskilled in arms, their number will tend little more to their security, than that of a flock of sheep does to preserve them from the depredations of the wolf: accordingly it is look|ed upon as a point of wisdom, in every state, to be furnished with this skill, though it is not to be obtained without great labor and expence.

Simeon Howard

The keeping up troops sufficient to guard exposed frontier posts, may be proper; but to have an army continually stationed in the midst of a peo|ple, in time of peace, is a precarious and dan|gerous method of security. A safer way, and which has always been es|teemed the wisest and best, by impartial men, is to have the power of defence in the body of the people, to have a well-regulated and well-disciplined militia. ¶ This is placing the sword in hands that will not be likely to betray their trust, and who will have the strongest motives to act their part well, in defence of their country, whenever they shall be called for. An army composed of men of property, who have been all their days inured to labour, will generally equal the best veteran troops, in point of strength of body and firmness of mind, and when fighting in defence of their religion, their estates, their liberty, and families, will have stronger motives to exert themselves, and may, if they have been properly disciplined, be not much inferior to them in the skill of arms.

Simeon Howard

Which case narrowed Roth's standards regarding possession of obscene materials?

Stanley v. Georgia

Which case was the first time that the SCRT blocked a state attempt to interfere with 1st amendment rights regarding displaying red flags?

Stromberg v. California

The organization's decision overturns a historic and defining separation, raising questions about their timing and how they differ from the Girl Scouts of the USA...In 2013, the organization lifted the ban on openly gay scouts and in 2015, ended the prohibition on gay leaders. Earlier this year, the Boy Scouts of America also said it will allow scout members that self-identify as male, creating room for transgender members...Wednesday's announcement, however, received pushback from the Girl Scouts of the USA, which has long been an alternative for girls and recently criticized the Boy Scouts for considering opening its doors to girls. "The need for female leadership has never been clearer or more urgent than it is today—and only Girl Scouts has the expertise to give girls and young women the tools they need for success," the Girl Scouts said in a statement."

Taylor Haskey

Which case held that speech which is not fighting words, but that is designed to stir up anger and provoke disputes, is protected by the First Amendment?

Terminiello v. Chicago

Which case said flag burning was symbolic speech protected under the 1st and 14th amendments?

Texas v. Johnson

"I will now add what I do not like. First the omission of a bill of rights providing clearly & without the aid of sophisms for freedom of religion, freedom of the press, protection against standing armies, restriction against monopolies, the eternal & unremitting force of the habeas corpus laws, and trials by jury in all matters of fact triable by the laws of the land & not by the law of Nations...Let me add that a bill of rights is what the people are entitled to against every government on earth, general or particular, & what no just government should refuse or rest on inference."

Thomas Jefferson (letter to JMAD)

"Half a loaf is better than no bread. If we cannot secure all our rights, let us secure what we can."

Thomas Jefferson (letter to JMAD)

"The tyranny of the legislatures is the most formidable dread at present, and will be for long years. That of the executive will come in it's turn, but it will be at a remote period. I know there are some among us who would now establish a monarchy.2 But they are inconsiderable in number and weight of character. The rising race are all republicans. We were educated in royalism: no wonder if some of us retain that idolatry still. Our young people are educated in republicanism. An apostacy from that to royalism is unprecedented and impossible. I am much pleased with the prospect that a declaration of rights will be added: and hope it will be done in that way which will not endanger the whole frame of the government, or any essential part of it."

Thomas Jefferson (letter to JMAD)

Which case formulated a test for whether symbolic speech was protected by the 1st Amendment in a school setting?

Tinker v. Des Moines

"...To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes..."

US Constitution, Article 1 section 8

Which case held that only weapons related to militias are protected by the 2nd amendment?

United States v. Miller

Which case created a test for the legality of government regulation of symbolic speech and expressive conduct?

United States v. O'Brien

Which case held that the government does not need to impose the least restrictive time, place, and manner restrictions on speech?

Ward v. Rock

"If a security be necessary on one side, it would seem reasonable to demand it on the other. But taking the matter in a more general view, he saw no danger to the States from the General Government. In case a combination should be made by the large ones it would produce a general alarm among the rest, and the project would be frustrated. But there was no temptation to such a project. The States having in general a similar interest, in case of any proposition in the National Legislature to encroach on the State Legislatures, he conceived a general alarm would take place in the National Legislature itself, that it would communicate itself to the State Legislatures, and would finally spread among the people at large."

William Samuel Johnson (Debate on Federalism)

"Might it not, on the other side be asked how the former was to be secured against the latter. It was generally admitted that a jealousy and rivalry, would be felt between the General and particular Governments. As the plan now stood, though indeed contrary to his opinion, one branch of the General Government, the Senate or second branch, was to be appointed by the State Legislatures. The State Legislatures, therefore, by this participation in the General Government would have an opportunity of defending their rights. Ought not a reciprocal opportunity to be given to the General Government of defending itself by having an appointment of some on constituent branch of the State Government."

William Samuel Johnson (Debate on Federalism)

"Mr. Wilson and the gentlemen from Virginia who also were adversaries of the plan of New Jersey held a different language. They wished to leave the States in possession of a considerable, though a subordinate jurisdiction. They had not yet however shown how this could consist with, or be secured against the general sovereignty and jurisdiction, which they proposed to give to the national Government. If this could be shown in such a manner as to satisfy the patrons of the New Jersey propositions, that the individuality of the States would not be endangered, many of their objections would no doubt be removed. If this could not be shown their objections would have their full force. He wished it therefore to be well considered whether in case the States as was proposed, should retain some portion of sovereignty at least, this portion could be preserved without allowing them to participate effectually in the General Government, without giving them each a distinct and equal vote for the purpose of defending themselves in the general Councils."

William Samuel Johnson (Debate on Federalism)

"On a comparison of the two plans which had been proposed from Virginia and New Jersey, it appeared that the peculiarity which characterized the latter was its being calculated to preserve the individuality of the States. The plan from Virginia did not profess to destroy this individuality altogether, but was charged with such a tendency. One Gentleman alone, Colonel Hamilton, in his animadversions on the plan of New Jersey, boldly and decisively contended for an abolition of the State Governments."

William Samuel Johnson (Debate on Federalism)

"The General Government will be as ready to preserve the rights of the States as the latter are to preserve the rights of individuals, all the members of the former, having a common interest, as representatives of all the people of the latter, to leave the State Governments in possession of what the people wish them to retain. He could not discover, therefore any danger whatever on the side from which it had been apprehended. On the contrary, he conceived that in spite of every precaution the general Government would be in perpetual danger of encroachments from the State Governments."

William Samuel Johnson (Debate on Federalism)