Brown v. Board of Education of Topeka

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- [Kim] Hi, this is Kim from Khan Academy,

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and today, we're learning more

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about Brown v. Board
of Education of Topeka.

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Decided in 1954, Brown v.
Board was a landmark case

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that opened the door for desegregation

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and the modern civil rights movement.

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In Brown, the Supreme Court
ruled that segregated schools

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for white and black children,

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which had been prevalent
throughout the American South

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since the 1896 decision
in Plessy v. Ferguson

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legalized segregation, were
in fact, inherently unequal.

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The named plaintiff in
this case, Oliver Brown,

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was the father of Linda,

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a third grader who had to take a bus

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to a segregated elementary school

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that was much further from her home

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than the nearby school for white children.

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To learn more about the Brown case,

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I sought out the help of two experts.

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Theodore Shaw is the Julius L. Chambers

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Distinguished Professor of Law

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and Director of the
Center for Civil Rights

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at the University of North
Carolina School of Law.

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Michael McConnell is the
Richard and Frances Mallery

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Professor and Director of
the Constitutional Law Center

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at Stanford Law School,
and a Senior Fellow

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at the Hoover Institution.

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So, Professor Shaw, can you just kind of

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set the stage for us?

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What was the overall social and political

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context behind this case?

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- [Theodore] Well, Brown was decided

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in the Cold War Era, I
think that's important

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for reasons that I'll come back to,

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but it also was decided,
I guess it was 58 years

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after the Supreme Court ruled

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in Plessy v. Ferguson
that "separate but equal"

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railway cars were constitutional.

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Of course that extended
to all walks of life

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in the South, and so what you had was

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Jim Crow segregation sustained

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and set in place by law.

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And Brown was the case
that cracked the edifice

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of Jim Crow segregation,

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so it was an enormously important case,

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it came after a long campaign

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by the NAACP Legal Defense
Fund to overturn Plessy.

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- [Kim] One thing that I think is

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really confusing about Plessy v. Ferguson

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is how it interacts
with the 14th Amendment.

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So, immediately after the Civil War

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Congress passed and the states ratified

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the 14th Amendment, which gives

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"equal protection under
the law" to all citizens,

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but then Plessy v. Ferguson, just a couple

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decades later, legalizes segregation.

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Can you talk a little bit more

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about how the Equal Protection Clause

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of the 14th Amendment has been interpreted

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in Plessy and then
later in Brown v. Board?

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- [Michael] The Doctrine
of "separate but equal"

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was itself a departure from the prior

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understanding of what
the 14th Amendment meant.

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In the immediate wake
of the 14th Amendment

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segregation was understood
to be a violation

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of equal rights, thus the
Congress of the United States

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passed the Civil Rights Act of 1875,

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which prohibited mandatory segregation

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of, among other things, railroads.

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Now, that was struck down in 1883,

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I believe it was 1886, but for reasons

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not related to "separate
but equal", or segregation.

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But it's only in the late 1880s and 1890s

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that states begin passing
Jim Crow legislation

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like the law in Plessy v. Ferguson.

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I think Plessy very
likely would have been,

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would have come out a different way

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had it come up 25 years earlier.

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It's really very difficult to understand

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the logic of Plessy because Plessy takes

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the point of view that segregation is okay

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because it treats everyone the same way

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and the sense of inferiority or insult

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that comes from segregation,
the Court just ignored.

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You can read the opinion different ways,

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and people do, and have read
the opinion different ways.

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A portion of the opinion
makes it sound as though

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this is a kind of social
science conclusion,

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that segregation breeds
a feeling of inferiority

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that has a deleterious effect

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on the black students'
performance in school.

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- [Theodore] There's a famous footnote

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in Brown v. Board of
Education, footnote 11

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in which some social
scientists, and particularly

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a Dr. Kenneth Clark,
did a series of tests,

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a doll test, in which they showed

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black and white dolls who
were otherwise identical

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to little children, little black children,

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and they asked "Who was the good doll?

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"Who was the bad doll?
Who was the pretty doll?

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Who was the ugly doll?"
and the black children

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would invariably choose the white dolls

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as the better dolls and the black dolls

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as the inferior dolls, and then finally

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the bombshell question,
"Which one looks like you?"

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and they would stop and choose

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the black doll, and many times tears

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would come to their eyes,
and so this old notion

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of the inferiority that segregation imbued

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in black schoolchildren was important

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and the Supreme Court had some

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very eloquent language about that.

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- [Michael] Everyone
knew that the only reason

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to have laws requiring black and white

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to be separate was because of the feeling

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on the part of the dominant white group

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that the African race was inferior.

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I think it was a failure
of political will, really,

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rather than a matter of constitutional

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or legal logic that led to that.

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And then it took, what, almost 60 years

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before the Supreme Court
would turn itself around.

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- [Theodore] The late A. Leon Higgenbotham

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who sat on the Court of
Appeals for the Third Circuit

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in Philadelphia, he used to say that

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"Plessy was wrong the day it was decided."

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and I believe he was right about that.

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If you go back and look at the rationale

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stated in Plessy, it doesn't hold up,

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it's not an intellectually
honest decision.

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And having said that,
if you look at Brown,

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it really did not overrule
Plessy on its face

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with respect to segregation
and Jim Crow across the board.

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What it did was say that in the field

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of public education, separate but equal

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is unconstitutional.

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Separate schools can not be equal.

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And what followed Brown
was a series of cases

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in all kinds of areas in which the Court,

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sometimes without much of an opinion,

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cited Brown but struck down segregation

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in public libraries and
public accommodations,

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and transportation, et cetera.

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The case that settled the long-running

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boycott in Montgomery, Alabama

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that catapulted Martin Luther King

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into the national and
world stage, you know,

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it was decided, it was resolved finally.

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The boycott was important,
but it was resolved

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by this case that the
Supreme Court decided

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and it cited Brown.

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- [Kim] So Thurgood Marshall
and the Legal Defense Fund

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had kind of been chipping
away at the edges

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of segregation, and then they turned

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directly to school segregation
in the Brown cases.

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So what kind of arguments did they use

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to challenge the system
of school segregation?

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- [Michael] Thurgood
Marshall and his co-counsel

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in the NAACP established
a very careful strategy

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of one case at a time, sort
of pushing the envelope

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of this idea that
segregation is inconsistent

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with the demands of equal protection.

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And the interesting
thing about Brown itself,

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the case challenging segregation

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in Topeka, Kansas, you
know, why Topeka, Kansas?

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Why was this such an excellent place

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to raise a challenge?

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And the reason is that
the schools in Topeka

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were very substantially equal in quality.

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In Topeka they actually had integrated

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high schools and middle schools,

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it was only the elementary schools

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that were segregated, and
the District Court found

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and the Supreme Court did not disagree,

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that in terms of their material advantages

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the black school was essentially

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just as good as the white school.

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And that's why the NAACP wanted to

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go after Topeka, because then it

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went to the principle of the thing.

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You know, it's one thing
to attack segregation

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when "separate but equal" is really

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just a fiction, but when
"separate but equal"

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is a reality, at least pretty close to it,

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as in Topeka, you have to go after

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the actual principle that segregation

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is wrong in principle and
not just wrong because

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it tends most of the time to lead to

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material disadvantage.

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- [Theodore] Brown was
actually five cases.

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The Brown case itself
came from Topeka, Kansas.

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In many ways the Supreme Court might have

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chosen to lead with the Brown case

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because it wasn't part of the South,

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and so in some ways it
might have been viewed as

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taking pressure off of the South.

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But there were five cases altogether.

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There was a case out of South Carolina,

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a case out of Virginia,
a case out of Delaware,

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a case out of Washington, D.C,

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and then the Topeka case.

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And the Brown family was actually not even

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the only family named
Brown in this Topeka case.

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And the other Brown case did not have

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their father available as the lead voice

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and they wanted a man, and so

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Oliver Brown was the one they chose.

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They stipulated that the schools

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were, in fact, equal, in all respects.

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And of course they weren't,
it was never possible

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to make "separate but equal" equal.

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But they stipulated that these schools

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were equal, the black
and the white schools,

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because they wanted the
court to be able to,

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or to have to, confront the issue

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of whether "separate but equal" per se

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was unconstitutional.

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- [Kim] Interesting, so
it's this place where

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they're hoping not to have a ruling that,

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for example, oh the
schools for black children

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need to be brought up
to code to be the same

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as white children, but they're trying

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to strike down the idea
of segregation altogether.

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And indeed, they rule unanimously that

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separate but equal facilities are

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inherently unequal.

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- [Michael] The Supreme
Court in Brown says

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"Well, whatever may
have been the status of

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"education as a civil right back then,

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"back in the 19th century, by now

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"it surely is a civil right and therefore

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"there can be no discrimination
with regard to it."

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And one other thing that changed,

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that I think the Supreme
Court doesn't refer to

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but many historians think was surely

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in the back of their minds has to do with

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foreign policy, of all things,

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that during this time the United States

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in the wake of World War II was playing

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a very major role in opposing colonialism,

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opposing communism, and trying to spread

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the gospel of liberty around the world,

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and when we had segregation at home

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this looked like rank hypocrisy.

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- [Theodore] This was the Cold War period.

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These soldiers came home from fighting

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a form of racism in Europe, Nazi Germany,

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you know, the Holocaust,
and when they came back

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they came back to segregated America.

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And there are many
stories that are painful

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about what their experiences were.

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But meanwhile the United States is having

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this Cold War with the Soviet Union,

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and the Soviet Union was exploiting

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this inconsistency in what America

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said it was and what it was.

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And although the Supreme Court

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never said a word about
that in the Brown cases,

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that was very much
context for that decision.

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- [Kim] So what did it
take for desegregation

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to really come about?

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Do you think we have
achieved desegregation?

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- [Theodore] Yes and no.

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There was a long battle
to implement Brown,

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and in fact for the
most part Brown was not

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implemented fully until,
to the extent it ever was,

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until the early 1970s,
when the Supreme Court

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decided a case called

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Swann v. Charlotte-Mecklenburg
Board of Education

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in North Carolina, and
sanctioned the use of busing.

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- [Michael] This does not depend upon

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what social scientists might think about

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how people do in school.

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This is a much more fundamental

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principle of equality under the law,

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that our law must treat
black and white the same.

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That for the government to
draw racial distinctions

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is fundamentally unequal
and unconstitutional

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and wrong and unjust.

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Fundamentally so, and
not just as a matter of

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social science evidence.

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- [Theodore] I don't
want to sound despairing,

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you know, but I think if anybody looks at

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our public schools today
in many of our communities,

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in our towns and cities, and our counties,

00:14:59.980 --> 00:15:02.110
we have to acknowledge, honestly,

00:15:02.110 --> 00:15:05.280
that there's still a
great deal of segregation,

00:15:05.280 --> 00:15:09.330
and there are many schools that are

00:15:09.330 --> 00:15:12.360
identifiably white or identifiably black

00:15:12.360 --> 00:15:17.360
and now, you know Latinos,
Hispanics, a large degree

00:15:18.450 --> 00:15:20.420
of segregation there also.

00:15:20.420 --> 00:15:24.270
And even voluntary desegregation efforts

00:15:24.270 --> 00:15:27.830
have been found by the
Supreme Court a few years ago

00:15:27.830 --> 00:15:31.020
to be largely unconstitutional and illegal

00:15:31.020 --> 00:15:32.043
and that's tragic.

00:15:33.100 --> 00:15:36.340
But that doesn't mean that
Brown wasn't significant.

00:15:36.340 --> 00:15:39.800
I was born in the year of
Brown v. Board of Education.

00:15:39.800 --> 00:15:42.750
The America that I grew
up in is a very different

00:15:42.750 --> 00:15:46.335
country than the one that preceded it.

00:15:46.335 --> 00:15:49.660
In spite of our flaws and our warts,

00:15:49.660 --> 00:15:51.870
no Brown v. Board of Education,

00:15:51.870 --> 00:15:55.600
no civil rights movement, I would say.

00:15:55.600 --> 00:15:58.870
And ultimately no desegregation of

00:15:58.870 --> 00:16:01.440
our society to the extent
that we've accomplished it.

00:16:01.440 --> 00:16:05.240
And we have, to a great
degree, no Barack Obama.

00:16:05.240 --> 00:16:09.180
So I think Brown stands, as I said, as a

00:16:09.180 --> 00:16:13.760
dividing point in America,
but we can do better.

00:16:13.760 --> 00:16:15.650
- [Kim] So we've learned
that under the leadership

00:16:15.650 --> 00:16:18.080
of Thurgood Marshall and the NAACP

00:16:18.080 --> 00:16:20.200
Legal Defense Fund, the decision

00:16:20.200 --> 00:16:22.550
in Brown v. Board of Education struck

00:16:22.550 --> 00:16:25.160
a major blow to the system of segregation.

00:16:25.160 --> 00:16:27.970
After World War II, amidst the ideological

00:16:27.970 --> 00:16:30.530
struggle of the Cold
War, the Supreme Court

00:16:30.530 --> 00:16:33.870
overturned the precedent
set in Plessy v. Ferguson

00:16:33.870 --> 00:16:36.620
and ruled that segregated
education constituted

00:16:36.620 --> 00:16:39.330
a violation of the Equal Protection Clause

00:16:39.330 --> 00:16:40.810
of the 14th Amendment.

00:16:40.810 --> 00:16:43.250
To learn more about Brown v. Board,

00:16:43.250 --> 00:16:45.300
visit the National Constitution Center's

00:16:45.300 --> 00:16:47.730
interactive Constitution
and Khan Academy's

00:16:47.730 --> 00:16:50.353
resources on U.S. government and politics.


McCulloch v. Maryland

WEBVTT
Kind: captions
Language: en

00:00:00.350 --> 00:00:02.540
- [Kim] Hey, this is
Kim from Khan Academy.

00:00:02.540 --> 00:00:06.410
And today we're learning
about McCulloch V. Maryland.

00:00:06.410 --> 00:00:10.270
A Supreme Court case
decided in 1819 that helped

00:00:10.270 --> 00:00:11.880
to define the relationship

00:00:11.880 --> 00:00:14.840
between the federal
government and the states.

00:00:14.840 --> 00:00:17.670
The question at issue
in this case was whether

00:00:17.670 --> 00:00:21.810
the state of Maryland could
tax the Baltimore branch

00:00:21.810 --> 00:00:24.020
of the Bank of the United States,

00:00:24.020 --> 00:00:26.470
and whether Congress even had the power

00:00:26.470 --> 00:00:30.100
to create a Bank of the United
States in the first place.

00:00:30.100 --> 00:00:33.770
To learn more, I sought out
the help of two experts.

00:00:33.770 --> 00:00:37.110
Randy Barnett is the
Carmack Waterhouse Professor

00:00:37.110 --> 00:00:41.010
of Legal Theory at the
Georgetown University Law Center

00:00:41.010 --> 00:00:44.460
and Director of the Georgetown
Center for the Constitution.

00:00:44.460 --> 00:00:48.510
Neil Siegel is the David
W Ichel Professor of law

00:00:48.510 --> 00:00:51.710
and Professor of Political
Science at Duke Law School.

00:00:51.710 --> 00:00:52.630
So, Professor Barnett,

00:00:52.630 --> 00:00:54.530
could you kind of set the stage for us?

00:00:54.530 --> 00:00:56.350
What was happening in this case?

00:00:56.350 --> 00:00:58.880
What was the overall context?

00:00:58.880 --> 00:01:00.430
- [Randy] Well, McCulloch V. Maryland

00:01:00.430 --> 00:01:02.100
was a culmination

00:01:02.100 --> 00:01:06.380
of a 30-year-old
constitutional controversy.

00:01:06.380 --> 00:01:08.170
In fact, it was the culmination

00:01:08.170 --> 00:01:09.850
of one of the earliest controversies

00:01:09.850 --> 00:01:11.030
that we had in the country.

00:01:11.030 --> 00:01:13.360
And that is over whether Congress had

00:01:13.360 --> 00:01:16.010
the power to establish a National Bank.

00:01:16.010 --> 00:01:19.400
A bank that would be a
corporation formed by Congress,

00:01:19.400 --> 00:01:21.320
which would have certain privileges

00:01:21.320 --> 00:01:22.400
that Congress granted it.

00:01:22.400 --> 00:01:25.950
This was a proposal that had
been made by Alexander Hamilton

00:01:25.950 --> 00:01:27.720
when he was Secretary of the Treasury

00:01:27.720 --> 00:01:28.553
in the Washington Administration

00:01:28.553 --> 00:01:32.070
in the very first year of the
Washington Administration.

00:01:32.070 --> 00:01:33.760
And it went to Congress

00:01:33.760 --> 00:01:37.180
and there was a very, very
robust debate in Congress

00:01:37.180 --> 00:01:38.050
as to whether this measure

00:01:38.050 --> 00:01:40.070
was within the powers
of Congress to enact.

00:01:40.070 --> 00:01:42.270
Eventually Congress voted that it was,

00:01:42.270 --> 00:01:44.810
and then before he signed the bill,

00:01:44.810 --> 00:01:47.580
President Washington asked
some of his cabinet members

00:01:47.580 --> 00:01:51.220
to give him their opinion on
whether it was constitutional

00:01:51.220 --> 00:01:54.390
and he heard from several
of his cabinet members.

00:01:54.390 --> 00:01:56.500
He heard from his Attorney
General Edmund Randolph,

00:01:56.500 --> 00:01:58.070
he said it was unconstitutional.

00:01:58.070 --> 00:02:00.990
He heard from his Secretary
of State, Thomas Jefferson,

00:02:00.990 --> 00:02:03.820
Jefferson said it was unconstitutional.

00:02:03.820 --> 00:02:06.590
Finally he heard from his
Secretary of Treasury,

00:02:06.590 --> 00:02:08.770
who had proposed it, Alexander Hamilton,

00:02:08.770 --> 00:02:10.730
who said it was constitutional,

00:02:10.730 --> 00:02:12.270
and Washington signed the bill.

00:02:12.270 --> 00:02:14.550
And it became law and it established

00:02:14.550 --> 00:02:17.110
the First National Bank
of the United States.

00:02:17.110 --> 00:02:21.980
- [Neil] This case arose in May of 1818

00:02:21.980 --> 00:02:24.300
when Maryland sued McCulloch.

00:02:24.300 --> 00:02:27.830
And he was the cashier at the
Baltimore branch of the bank.

00:02:27.830 --> 00:02:30.250
Maryland sued him in state court

00:02:30.250 --> 00:02:34.480
to recover a tax assessed
by Maryland on the bank.

00:02:34.480 --> 00:02:38.180
And this was a time of intense hostility

00:02:38.180 --> 00:02:42.560
toward the National Bank
in a number of states.

00:02:42.560 --> 00:02:45.780
The state banks competed
with the National Bank

00:02:45.780 --> 00:02:49.170
and there had been an
economic panic in 1818

00:02:49.170 --> 00:02:52.740
when the US Bank called in
its loans and state banks

00:02:52.740 --> 00:02:55.800
that had loans from the
Federal Bank were crippled.

00:02:55.800 --> 00:02:58.440
And in response, a number of states

00:02:58.440 --> 00:03:02.820
passed nearly annihilative
taxes on the Federal Bank

00:03:02.820 --> 00:03:06.410
and that's the environment
in which in 1819 McCulloch

00:03:06.410 --> 00:03:10.009
against Maryland came
before the Supreme Court.

00:03:10.009 --> 00:03:10.842
- [Kim] And that's very interesting

00:03:10.842 --> 00:03:13.980
because this is something
that we talk a lot about

00:03:13.980 --> 00:03:16.240
in the early 19th Century.

00:03:16.240 --> 00:03:20.390
The Bank of the United States
and what was good about it

00:03:20.390 --> 00:03:21.760
and what was bad about it.

00:03:21.760 --> 00:03:23.880
There's certain people
who were certainly enemies

00:03:23.880 --> 00:03:25.980
of the Bank like Thomas Jefferson,

00:03:25.980 --> 00:03:28.230
and then later, Andrew Jackson.

00:03:28.230 --> 00:03:30.240
Why did people object

00:03:30.240 --> 00:03:32.543
to the Bank of the United States so much?

00:03:33.390 --> 00:03:36.480
- [Neil] Yeah, there were
variety of objections.

00:03:36.480 --> 00:03:39.630
There was a real political
policy disagreement

00:03:39.630 --> 00:03:43.540
about whether it was a good idea.

00:03:43.540 --> 00:03:48.540
Hamilton had a Nation-Building,
economy building objective,

00:03:49.810 --> 00:03:52.790
as the first Secretary of the Treasury.

00:03:52.790 --> 00:03:55.100
He wanted to pay off
both the national debt

00:03:55.100 --> 00:03:57.390
and the state debts from
the Revolutionary War

00:03:57.390 --> 00:03:59.790
which remained unpaid.

00:03:59.790 --> 00:04:03.020
He was emphasizing
manufacturing in commerce.

00:04:03.020 --> 00:04:06.960
And the National Bank was
a key part of his plan.

00:04:06.960 --> 00:04:10.430
The bank would make it easier
for the national government

00:04:10.430 --> 00:04:15.430
to raise taxes, to pay off
debts, to make payments,

00:04:16.100 --> 00:04:18.860
to obtain short term loans.

00:04:18.860 --> 00:04:21.390
The notes issued by
the bank could function

00:04:21.390 --> 00:04:23.090
as a national currency.

00:04:23.090 --> 00:04:24.960
It could also provide a source of capital

00:04:24.960 --> 00:04:27.620
for financing businesses.

00:04:27.620 --> 00:04:29.740
But the opponents had different ideas.

00:04:29.740 --> 00:04:31.030
- [Randy] One of the leading opponents

00:04:31.030 --> 00:04:32.930
in Congress was James Madison,

00:04:32.930 --> 00:04:34.350
who at the time was a representative

00:04:34.350 --> 00:04:36.060
from Orange County, Virginia.

00:04:36.060 --> 00:04:40.200
What concerned him, and I think
what's concerned many people

00:04:40.200 --> 00:04:43.840
was that there was no
expressed enumerative power

00:04:43.840 --> 00:04:46.930
in the Constitution for
Congress to make a bank.

00:04:46.930 --> 00:04:50.550
There was an enumerative
power to create a post office,

00:04:50.550 --> 00:04:53.080
but there was no enumerated
power to create a bank.

00:04:53.080 --> 00:04:57.280
So the question is whether
the failure, or the silence,

00:04:57.280 --> 00:05:00.490
of the constitution on
whether there was this power,

00:05:00.490 --> 00:05:03.470
should be construed in favor
of having such a power,

00:05:03.470 --> 00:05:04.800
or not having such a power.

00:05:04.800 --> 00:05:08.910
And Madison's concern was
that to imply such a power

00:05:08.910 --> 00:05:12.100
especially when the way in
which it was being applied

00:05:12.100 --> 00:05:15.510
was very remotely connected to
one of the enumerated powers

00:05:15.510 --> 00:05:18.330
that were in the Constitution,
was very dangerous,

00:05:18.330 --> 00:05:21.040
because by that form of reasoning,

00:05:21.040 --> 00:05:23.500
Congress could essentially
do whatever it wished

00:05:23.500 --> 00:05:27.470
and that would violate the
basic pledge that this was going

00:05:27.470 --> 00:05:28.890
to be a national government

00:05:28.890 --> 00:05:31.720
of limited and enumerated powers.

00:05:31.720 --> 00:05:35.290
- [Kim] So, in Congress,
what was the power

00:05:35.290 --> 00:05:39.260
that proponents of the bank
used to justify passing it?

00:05:39.260 --> 00:05:42.523
- [Randy] The principal
power that they used

00:05:42.523 --> 00:05:44.868
is called the Necessary and Proper Clause.

00:05:44.868 --> 00:05:45.967
The Necessary and Proper Clause says,

00:05:45.967 --> 00:05:48.217
"Congress shall have
Power to make all Laws

00:05:48.217 --> 00:05:50.827
"which shall be necessary
and proper for carrying

00:05:50.827 --> 00:05:52.920
"into Execution its foregoing Powers,"

00:05:52.920 --> 00:05:54.487
those powers on the list,

00:05:54.487 --> 00:05:56.777
"and all other Powers
vested by the Constitution

00:05:56.777 --> 00:05:58.057
"in the Government of the United States,

00:05:58.057 --> 00:06:00.170
"or in any Department of Officer thereof."

00:06:00.170 --> 00:06:02.680
This is called the
Necessary and Proper Clause.

00:06:02.680 --> 00:06:06.200
It allows for Congress
to make laws incidental

00:06:06.200 --> 00:06:08.440
to the enumerated powers to effectuate,

00:06:08.440 --> 00:06:11.960
or carry into execution
those powers and supporters

00:06:11.960 --> 00:06:14.570
of the bill said that the bank carried

00:06:14.570 --> 00:06:16.330
into execution a number of powers.

00:06:16.330 --> 00:06:17.983
It carried into execution
the taxing power,

00:06:17.983 --> 00:06:21.410
it carried into execution
the commerce power.

00:06:21.410 --> 00:06:23.950
The opponents of the bank
said, well, it may do that,

00:06:23.950 --> 00:06:26.800
but it only does that in
a very attenuated way.

00:06:26.800 --> 00:06:30.870
And therefore if it can do
this in order to effectuate

00:06:30.870 --> 00:06:33.740
that power, then it pretty
much can do anything

00:06:33.740 --> 00:06:35.850
to effectuate a power, and therefore

00:06:35.850 --> 00:06:40.470
it can pretty much do anything
and that's a big problem.

00:06:40.470 --> 00:06:45.470
- [Kim] So, Maryland sues
McCulloch, and then what happens?

00:06:45.567 --> 00:06:47.530
- [Neil] Right, Maryland sues McCulloch

00:06:47.530 --> 00:06:50.170
because Maryland didn't
pass an annihilative tax,

00:06:50.170 --> 00:06:54.110
it was a tax of around 2% of the banknotes

00:06:55.140 --> 00:06:57.000
issued by the National Bank.

00:06:57.000 --> 00:06:59.400
And Maryland won in the state trial court,

00:06:59.400 --> 00:07:02.317
and Maryland won in
the state Supreme Court

00:07:02.317 --> 00:07:05.096
and this was really not
a surprise at the time.

00:07:05.096 --> 00:07:05.929
- [Kim] (laughs) Right.

00:07:05.929 --> 00:07:08.030
- [Neil] They were, let's just say

00:07:08.030 --> 00:07:10.540
solicitous of the views of the state

00:07:10.540 --> 00:07:13.690
and after the state Supreme Court decided,

00:07:13.690 --> 00:07:16.610
the case went to the US
Supreme Court on appeal.

00:07:16.610 --> 00:07:19.240
So, even though Maryland sues McCulloch,

00:07:19.240 --> 00:07:20.890
by the time it gets to the Supreme Court,

00:07:20.890 --> 00:07:24.110
it's called McCulloch against
Maryland because McCulloch,

00:07:24.110 --> 00:07:27.790
the cashier of the Baltimore
branch is now the petitioner.

00:07:27.790 --> 00:07:31.360
He is requesting the
US Supreme court review

00:07:31.360 --> 00:07:35.000
of the decision of the
Maryland high court.

00:07:35.000 --> 00:07:38.780
And McCulloch is asking the
Supreme Court to intervene

00:07:38.780 --> 00:07:41.500
and in essence side with
the Federal Government

00:07:41.500 --> 00:07:42.690
over the state.

00:07:42.690 --> 00:07:46.000
- [Kim] Interesting, so what
are the constitutional issues

00:07:46.000 --> 00:07:50.823
at stake once the McCulloch
case gets to the Supreme Court?

00:07:51.830 --> 00:07:52.663
- [Randy] Well, the Supreme Court

00:07:52.663 --> 00:07:53.840
in a very lengthy opinion

00:07:53.840 --> 00:07:56.350
has to consider a couple
of different matters.

00:07:56.350 --> 00:07:59.190
First, it has to consider
whether the states have the power

00:07:59.190 --> 00:08:02.900
to tax a federal entity, like a bank,

00:08:02.900 --> 00:08:05.080
and that's where you
have the famous statement

00:08:05.080 --> 00:08:06.897
by John Marshal that says,

00:08:06.897 --> 00:08:10.050
"The power to tax can be
the power to destroy."

00:08:10.050 --> 00:08:12.240
What he's talking about
is the power of states

00:08:12.240 --> 00:08:15.500
to tax a federal entity,
like a bank, might be

00:08:15.500 --> 00:08:17.620
the power of states to
destroy a federal entity

00:08:17.620 --> 00:08:19.830
and he ruled against that claim.

00:08:19.830 --> 00:08:21.110
He basically argued that states

00:08:21.110 --> 00:08:23.410
couldn't have that kind of power.

00:08:23.410 --> 00:08:25.270
- [Neil] And a threshold question

00:08:25.270 --> 00:08:26.890
before the Supreme Court decides

00:08:26.890 --> 00:08:28.360
that question of state authority

00:08:28.360 --> 00:08:30.070
to tax the National Government,

00:08:30.070 --> 00:08:33.780
is whether the National Bank
can exist to begin with.

00:08:33.780 --> 00:08:38.120
Is there federal power to
create a national bank?

00:08:38.120 --> 00:08:39.920
Part of what Maryland is arguing

00:08:39.920 --> 00:08:43.210
is that there's no federal
power to create the bank.

00:08:43.210 --> 00:08:45.520
And so, in fact, this taxation

00:08:45.520 --> 00:08:48.160
that it's engaging in is unproblematic.

00:08:48.160 --> 00:08:50.030
The first question is whether
the federal government

00:08:50.030 --> 00:08:53.100
can create the bank,
and if the answer is no,

00:08:53.100 --> 00:08:55.440
then the case is over,
if the answer is yes,

00:08:55.440 --> 00:08:56.710
then you get to the second question

00:08:56.710 --> 00:08:58.220
of whether the states can tax

00:08:58.220 --> 00:09:00.770
this part of the federal
government, the national bank.

00:09:00.770 --> 00:09:02.750
- [Kim] So at this time the Chief Justice

00:09:02.750 --> 00:09:05.020
of the Supreme Court is John Marshal,

00:09:05.020 --> 00:09:09.030
very well known as being
kind of the Chief Justice

00:09:09.030 --> 00:09:12.900
that brought the Supreme
court to be a major player

00:09:12.900 --> 00:09:16.920
in the US Governmental system.

00:09:16.920 --> 00:09:19.300
How did he interpret what was going on?

00:09:19.300 --> 00:09:22.330
What did he and the other justices decide?

00:09:22.330 --> 00:09:25.710
- [Neil] He borrowed extensively
from Hamilton's arguments.

00:09:25.710 --> 00:09:30.200
And so Marshal adopted
Hamilton's arguments

00:09:30.200 --> 00:09:32.750
in defense of the
constitutionality of the bank

00:09:32.750 --> 00:09:37.750
that Hamilton originally
articulated back in 1790, 1791.

00:09:39.570 --> 00:09:42.850
And so the court held, entered opinion

00:09:42.850 --> 00:09:46.320
by the great Chief Justice
first that Congress does possess

00:09:46.320 --> 00:09:49.650
the authority to create
the bank and secondly

00:09:49.650 --> 00:09:52.660
that states have no
authority to tax the bank.

00:09:52.660 --> 00:09:54.620
- [Randy] And that is
what Marshall concluded

00:09:54.620 --> 00:09:56.520
was within Congresses power

00:09:56.520 --> 00:09:58.930
under the Necessary and
Proper Clause to enact.

00:09:58.930 --> 00:10:00.770
And in fact, when it got to the court

00:10:00.770 --> 00:10:04.090
in McCulloch V. Maryland,
it was the state of Maryland

00:10:04.090 --> 00:10:07.560
who basically adopted
the Jeffersonian approach

00:10:07.560 --> 00:10:11.210
and said that a measure
must be, in its words,

00:10:11.210 --> 00:10:13.610
indispensably requisite
or what you might call

00:10:13.610 --> 00:10:17.370
absolutely necessary in order
for it to be constitutional.

00:10:17.370 --> 00:10:21.350
And whereas the defenders
of the bank bill said

00:10:21.350 --> 00:10:23.340
that it could be a lot less than that.

00:10:23.340 --> 00:10:26.530
So, I think that there's
basically three positions

00:10:26.530 --> 00:10:27.363
that you can have.

00:10:27.363 --> 00:10:31.740
It has to be indispensably
requisite or logically necessary,

00:10:31.740 --> 00:10:34.500
that's the Jefferson and Maryland view.

00:10:34.500 --> 00:10:38.030
It could be merely a matter
of convenience or expediency,

00:10:38.030 --> 00:10:41.150
meaning basically Congress
can do whatever it wants.

00:10:41.150 --> 00:10:44.450
That's the liberal view
that sometimes attributed

00:10:44.450 --> 00:10:48.050
to John Marshal in McCulloch
V. Maryland, but he denied it.

00:10:48.050 --> 00:10:50.150
And there's the in-between position

00:10:50.150 --> 00:10:53.040
that I think both Madison
and Hamilton were favoring,

00:10:53.040 --> 00:10:57.000
and that is the requirement of
some degree of means ends fit

00:10:57.000 --> 00:11:01.640
so that a measure really is
aimed at a particular end,

00:11:01.640 --> 00:11:04.030
and it's not really trying
to accomplish something

00:11:04.030 --> 00:11:05.980
that Congress isn't given the power over.

00:11:05.980 --> 00:11:07.870
- [Neil] What I think is less well known

00:11:07.870 --> 00:11:12.550
about this case is that this
part of the case was over

00:11:12.550 --> 00:11:15.790
and the court had already
decided that this federal power

00:11:15.790 --> 00:11:17.380
to create the bank before it even

00:11:17.380 --> 00:11:20.130
got to the Necessary and Proper Clause.

00:11:20.130 --> 00:11:23.250
This case is a great
example of what's called

00:11:23.250 --> 00:11:27.150
structural Constitutional Interpretation.

00:11:27.150 --> 00:11:30.650
Hamilton articulated two
structural principles,

00:11:30.650 --> 00:11:33.730
first that the federal
government is supreme

00:11:33.730 --> 00:11:36.000
within its sphere of action.

00:11:36.000 --> 00:11:41.000
And second if some kind of
end is within federal power

00:11:41.330 --> 00:11:43.690
is listed in the Constitution,

00:11:43.690 --> 00:11:47.260
then any convenient or
useful means to accomplishing

00:11:47.260 --> 00:11:50.560
that end is also within the scope.

00:11:50.560 --> 00:11:53.830
And so, Marshal decides
that drawing inferences

00:11:53.830 --> 00:11:57.470
from his understanding of
the theory and structure

00:11:57.470 --> 00:12:00.470
of government created by the Constitution

00:12:00.470 --> 00:12:03.950
and only after he does
that, does he then turn

00:12:03.950 --> 00:12:07.540
to the Necessary and
Proper clause to confirm

00:12:07.540 --> 00:12:09.840
what he has already deduced

00:12:09.840 --> 00:12:12.463
through what he calls general reasoning.

00:12:13.310 --> 00:12:17.350
- [Kim] So, McCulloch V.
Maryland is frequently paired

00:12:17.350 --> 00:12:21.300
with Marbury V. Madison as being two cases

00:12:21.300 --> 00:12:25.880
that really decide the
extent of Federal Power

00:12:25.880 --> 00:12:27.730
in this early era.

00:12:27.730 --> 00:12:30.840
Do you think that these
two cases are related?

00:12:30.840 --> 00:12:34.010
What do they tell us about the ideas

00:12:34.010 --> 00:12:37.000
at this time period about federal power?

00:12:37.000 --> 00:12:38.110
- [Randy] Well, they're very important.

00:12:38.110 --> 00:12:39.670
I don't think they are quite

00:12:39.670 --> 00:12:43.420
as extreme as they've come to
be read after the New Deal.

00:12:43.420 --> 00:12:47.430
When the New Deal Court
and progressive advocates

00:12:47.430 --> 00:12:50.520
for a New Deal were going back

00:12:50.520 --> 00:12:52.870
into the past and seeking justifications

00:12:52.870 --> 00:12:54.170
for what they wanted to do,

00:12:54.170 --> 00:12:57.080
they read McCulloch V.
Maryland very broadly.

00:12:57.080 --> 00:12:59.940
They also read Marbury V. Madison.

00:12:59.940 --> 00:13:01.780
Actually they read Marbury V. Madison

00:13:01.780 --> 00:13:03.160
in some respects very narrowly

00:13:03.160 --> 00:13:05.120
because they didn't
want courts invalidating

00:13:05.120 --> 00:13:06.790
their New Deal legislations.

00:13:06.790 --> 00:13:09.350
Marbury V. Madison was not a huge deal

00:13:09.350 --> 00:13:10.620
at the time it was decided.

00:13:10.620 --> 00:13:14.270
The idea that judges had a
duty to follow the higher law

00:13:14.270 --> 00:13:16.710
when it was in conflict
with the mere statute,

00:13:16.710 --> 00:13:18.870
was widely accepted at
the time of the founding.

00:13:18.870 --> 00:13:22.410
And so Marbury was not
announcing a new policy.

00:13:22.410 --> 00:13:24.270
McCulloch V. Maryland on the other hand

00:13:24.270 --> 00:13:27.120
was extremely controversial
when it was decided,

00:13:27.120 --> 00:13:30.570
and in fact quite oddly

00:13:30.570 --> 00:13:34.280
James Madison, who had signed the bill

00:13:34.280 --> 00:13:38.180
authorizing the second
bank into law, greatly,

00:13:38.180 --> 00:13:41.270
strenuously objected to
John Marshall's opinion

00:13:41.270 --> 00:13:43.800
in McCulloch V. Maryland
upholding the bill

00:13:43.800 --> 00:13:45.860
that Madison had signed into law.

00:13:45.860 --> 00:13:49.750
So, Madison still maintained that Marshall

00:13:49.750 --> 00:13:53.930
had a latitudinarian or
overly broad interpretation

00:13:53.930 --> 00:13:56.360
of federal power, even
in upholding the bill

00:13:56.360 --> 00:13:57.670
that Madison by this time

00:13:57.670 --> 00:14:00.240
had come to believe was constitutional.

00:14:00.240 --> 00:14:01.660
- [Kim] So, what ultimately happened

00:14:01.660 --> 00:14:04.120
with the Bank of the United States?

00:14:04.120 --> 00:14:05.550
- [Neil] What ultimately happened

00:14:05.550 --> 00:14:08.560
is both the first bank, the
bill creating the first bank

00:14:08.560 --> 00:14:11.700
and the second bank had what's
called a sunset provision,

00:14:11.700 --> 00:14:13.777
which means after a
certain amount of time,

00:14:13.777 --> 00:14:16.490
and it was 20 years, it expires.

00:14:16.490 --> 00:14:19.620
And so to reauthorize it, it
puts the burden of inertia

00:14:19.620 --> 00:14:22.210
on those who want the thing to continue.

00:14:22.210 --> 00:14:24.560
And so Congress had to pass another bill

00:14:24.560 --> 00:14:26.390
reauthorizing the bank.

00:14:26.390 --> 00:14:30.970
And president Andrew Jackson
opposed reauthorization.

00:14:30.970 --> 00:14:33.290
- [Randy] President Andrew Jackson vetoed

00:14:33.290 --> 00:14:35.310
the reauthorization of the bank.

00:14:35.310 --> 00:14:37.040
And it was very interesting

00:14:37.040 --> 00:14:39.480
because he vetoed it on
constitutional grounds.

00:14:39.480 --> 00:14:42.690
He said it was unconstitutional and yet,

00:14:42.690 --> 00:14:44.840
what happened to Mark
McCulloch V. Maryland?

00:14:44.840 --> 00:14:47.370
If McCulloch V. Maryland said
the bank was constitutional,

00:14:47.370 --> 00:14:49.660
how could President Jackson say

00:14:49.660 --> 00:14:51.100
that it was unconstitutional?

00:14:51.100 --> 00:14:53.300
Well, it was interesting
because what McCulloch said

00:14:53.300 --> 00:14:57.590
was that the bank was
constitutional as an exercise

00:14:57.590 --> 00:14:59.850
of Congress' power to make laws

00:14:59.850 --> 00:15:01.600
that are Necessary and Proper,

00:15:01.600 --> 00:15:04.100
that Congress believed
was Necessary and Proper.

00:15:04.100 --> 00:15:06.440
And because Congress
believed it was necessary

00:15:06.440 --> 00:15:08.650
and because the measure
was plainly adapted

00:15:08.650 --> 00:15:12.070
to a legitimate end in the Constitution,

00:15:12.070 --> 00:15:13.700
then it was constitutional.

00:15:13.700 --> 00:15:17.140
What Jackson said was,
hey, look, the court said

00:15:17.140 --> 00:15:18.600
that it's up to Congress to decide

00:15:18.600 --> 00:15:21.840
whether something is necessary
and therefore constitutional,

00:15:21.840 --> 00:15:25.080
and I as President, exercise a veto power

00:15:25.080 --> 00:15:26.870
as part of the legislative process,

00:15:26.870 --> 00:15:29.300
therefore it is up to me to decide

00:15:29.300 --> 00:15:30.860
whether the measure is necessary

00:15:30.860 --> 00:15:34.040
and therefore is constitutional,
so I as President,

00:15:34.040 --> 00:15:38.720
have decided that a bank is
not necessary and therefore,

00:15:38.720 --> 00:15:41.820
because the bank is not
necessary it is unconstitutional,

00:15:41.820 --> 00:15:45.800
and McCulloch V. Maryland
allows me, as a participant

00:15:45.800 --> 00:15:48.490
in the legislative
process, to make that call.

00:15:48.490 --> 00:15:50.240
- [Neil] Congress did not override

00:15:50.240 --> 00:15:52.860
Jackson's veto and the bank expired,

00:15:52.860 --> 00:15:55.960
and the story ended in 1836.

00:15:55.960 --> 00:15:59.070
And I think this speaks
to one of many morals

00:15:59.070 --> 00:16:01.430
of the story of the Bank
of the United States.

00:16:01.430 --> 00:16:04.210
The Supreme Court doesn't
have the last word

00:16:04.210 --> 00:16:08.070
on constitutional questions
when it upholds exercises

00:16:08.070 --> 00:16:11.640
of federal power, it's then
left to the political process

00:16:11.640 --> 00:16:14.530
to decide whether or
not it wants to continue

00:16:14.530 --> 00:16:19.290
whatever controversial action
or legislation was at issue.

00:16:19.290 --> 00:16:22.820
- [Kim] So, is there any
aspect of McCulloch V. Maryland

00:16:22.820 --> 00:16:24.330
that still affects us today?

00:16:24.330 --> 00:16:27.170
- [Randy] One reading of McCulloch
is that it gives Congress

00:16:27.170 --> 00:16:30.780
a power so broad that it allows Congress

00:16:30.780 --> 00:16:35.780
to exercise any power
that it deems convenient,

00:16:35.870 --> 00:16:38.730
to the exercise of one of
it's enumerative powers.

00:16:38.730 --> 00:16:41.750
That is how McCulloch has
come to be interpreted.

00:16:41.750 --> 00:16:45.350
I think that is an over
reading of McCulloch.

00:16:45.350 --> 00:16:49.570
And it also overlooks
one of the key passages

00:16:49.570 --> 00:16:51.970
of McCulloch V. Maryland that nowadays

00:16:51.970 --> 00:16:55.003
is given no legal effect
by the Supreme Court.

00:16:55.003 --> 00:16:57.887
This is what John Marshal
said, "Should Congress,

00:16:57.887 --> 00:17:00.977
"under the pretext of
executing its powers,

00:17:00.977 --> 00:17:04.197
"pass laws for the
accomplishment of objects

00:17:04.197 --> 00:17:06.827
"not entrusted to the
government, it would become

00:17:06.827 --> 00:17:08.967
"the painful duty of this tribunal,

00:17:08.967 --> 00:17:11.777
"should a case requiring such
a decision come before it,

00:17:11.777 --> 00:17:16.350
"to say that such an act was
not the law of the land."

00:17:16.350 --> 00:17:18.910
So what Marshall is saying there is

00:17:18.910 --> 00:17:23.910
that just because Congress
says a law is necessary

00:17:24.370 --> 00:17:27.260
to one of it's enumerative
powers, doesn't make it so,

00:17:27.260 --> 00:17:29.430
and if there is a lack of fit

00:17:29.430 --> 00:17:31.660
between means and ends suggesting

00:17:31.660 --> 00:17:34.610
that in fact Congress is trying
to pursue one of the powers

00:17:34.610 --> 00:17:37.740
that was not given to it
under the Constitution,

00:17:37.740 --> 00:17:40.730
it really would be the
painful duty of the tribunal

00:17:40.730 --> 00:17:42.350
to say it was not the law of the land,

00:17:42.350 --> 00:17:46.080
and that connects this case
back up with Marbury V. Madison

00:17:46.080 --> 00:17:49.590
in which it is the painful duty
of the Supreme court to say

00:17:49.590 --> 00:17:51.460
that a statute is not the law of the land

00:17:51.460 --> 00:17:53.010
if it is unconstitutional.

00:17:53.010 --> 00:17:57.190
That aspect of McCulloch V.
Maryland is no longer followed

00:17:57.190 --> 00:17:59.370
in part because during the New Deal,

00:17:59.370 --> 00:18:01.790
the Supreme Court said
that it would not inquire

00:18:01.790 --> 00:18:05.670
into the motives of
Congress in enacting laws.

00:18:05.670 --> 00:18:09.070
And in fact, what McCulloch
is saying here is to inquire

00:18:09.070 --> 00:18:10.620
into the motives is to say, hey, look,

00:18:10.620 --> 00:18:12.950
it's really, it purports
to be doing one thing,

00:18:12.950 --> 00:18:15.830
but it's really doing something else

00:18:15.830 --> 00:18:17.580
and that is pre textual.

00:18:17.580 --> 00:18:20.170
- [Neil] Yeah, there
has been irreconcilable

00:18:20.170 --> 00:18:22.760
disagreement on basic
constitutional questions

00:18:22.760 --> 00:18:23.610
from the very beginning

00:18:23.610 --> 00:18:25.650
of the constitution.
(Kim Laughs)

00:18:25.650 --> 00:18:28.470
Madison and Hamilton, who
come together and write

00:18:28.470 --> 00:18:30.600
the federalist papers, they disagree

00:18:30.600 --> 00:18:32.090
about this fundamental question

00:18:32.090 --> 00:18:34.040
of strict versus loose construction

00:18:34.040 --> 00:18:35.980
of Congress's numerated powers.

00:18:35.980 --> 00:18:39.080
They also disagree about
Congress's spending powers.

00:18:39.080 --> 00:18:41.900
They disagree about
inherent executive powers.

00:18:41.900 --> 00:18:46.900
So sometimes originalist
constitutional arguments presuppose

00:18:47.200 --> 00:18:49.860
a greater degree of consensus

00:18:49.860 --> 00:18:52.550
about what the constitution means

00:18:52.550 --> 00:18:54.830
at the start of the
country that I don't see

00:18:54.830 --> 00:18:56.500
when I study the history.

00:18:56.500 --> 00:18:59.710
We have always disagreed,
we've always managed

00:18:59.710 --> 00:19:02.990
to find some kind of
community in disagreement.

00:19:02.990 --> 00:19:04.600
It's the conflicts and disagreements

00:19:04.600 --> 00:19:09.160
that have binded us together
as much, if not more,

00:19:09.160 --> 00:19:13.600
than agreements we've had about
what the Constitution means.

00:19:13.600 --> 00:19:16.040
- [Kim] So, we've learned
that McCulloch V. Maryland

00:19:16.040 --> 00:19:19.000
was about far more than
just a tax on a bank.

00:19:19.000 --> 00:19:21.610
It bolstered the power
of the federal government

00:19:21.610 --> 00:19:25.220
by broadly defining the
Necessary and Proper Clause,

00:19:25.220 --> 00:19:29.940
and by confirming that federal
law is supreme to state law.

00:19:29.940 --> 00:19:32.370
To learn more about McCulloch V. Maryland,

00:19:32.370 --> 00:19:34.570
visit the National Constitution Center's

00:19:34.570 --> 00:19:37.730
interactive constitution
and Khan Academy's resources

00:19:37.730 --> 00:19:39.723
on US Government and politics.


The Fourth Amendment

WEBVTT
Kind: captions
Language: en

00:00:00.240 --> 00:00:02.210
- [Kim] Hey this is Kim from Khan Academy,

00:00:02.210 --> 00:00:06.040
and today I'm talking with some experts

00:00:06.040 --> 00:00:09.040
about the Fourth Amendment.

00:00:09.040 --> 00:00:11.710
This is the Fourth Amendment
of the Bill of Rights,

00:00:11.710 --> 00:00:13.730
and the Fourth Amendment deals with

00:00:13.730 --> 00:00:17.150
unreasonable search and seizure.

00:00:17.150 --> 00:00:19.280
So here's the official
text of the amendment.

00:00:19.280 --> 00:00:22.340
It says, "The right of
the people to be secure

00:00:22.340 --> 00:00:26.190
in their persons, houses,
papers, and effects,

00:00:26.190 --> 00:00:28.820
against unreasonable
searches and seizures,

00:00:28.820 --> 00:00:32.380
shall not be violated, and
no Warrants shall issue,

00:00:32.380 --> 00:00:37.150
but upon probably cause,
supported by Oath or affirmation,

00:00:37.150 --> 00:00:40.040
and particularly describing
the place to be searched,

00:00:40.040 --> 00:00:42.810
and the persons or things to be seized."

00:00:42.810 --> 00:00:44.550
To learn more about the Fourth Amendment,

00:00:44.550 --> 00:00:46.950
I talked to two law professors

00:00:46.950 --> 00:00:49.980
who specialize in criminal law,

00:00:49.980 --> 00:00:53.240
Professor Tracey Meares of Yale University

00:00:53.240 --> 00:00:56.930
and Professor Orin Kerr of
George Washington University,

00:00:56.930 --> 00:00:58.430
and he's a particular expert

00:00:58.430 --> 00:01:01.300
in criminal procedure and computer crime.

00:01:01.300 --> 00:01:03.970
Professor Kerr, can you
tell us a little bit about

00:01:03.970 --> 00:01:06.570
what the Fourth Amendment
is and why the Framers

00:01:06.570 --> 00:01:10.030
were interested in protecting
these rights in particular?

00:01:10.030 --> 00:01:11.720
- [Orin] The Fourth Amendment is a ban

00:01:11.720 --> 00:01:14.840
on unreasonable searches and
seizures by the government.

00:01:14.840 --> 00:01:18.030
It's something the Framers
were interested in because

00:01:18.030 --> 00:01:20.370
they wanted to limit
the government's power.

00:01:20.370 --> 00:01:21.770
At the time of the framing,

00:01:21.770 --> 00:01:25.740
the English king had engaged
in some pretty bad things

00:01:25.740 --> 00:01:27.100
that the Framers wanted to stop,

00:01:27.100 --> 00:01:29.990
and one of those was
raiding people's homes

00:01:29.990 --> 00:01:32.108
with what was called a general warrant.

00:01:32.108 --> 00:01:33.340
A general warrant was basically a warrant

00:01:33.340 --> 00:01:35.370
that said the police could go anywhere

00:01:35.370 --> 00:01:37.240
and look for anything without any limit.

00:01:37.240 --> 00:01:38.910
- [Kim] I asked Professor
Meares to explain

00:01:38.910 --> 00:01:41.340
a little bit more about general warrants.

00:01:41.340 --> 00:01:43.530
She's a professor at Yale Law School

00:01:43.530 --> 00:01:45.720
who specializes in criminal procedure

00:01:45.720 --> 00:01:47.530
and criminal law policy.

00:01:47.530 --> 00:01:50.700
- [Tracey] They were a
general warrant allowing

00:01:50.700 --> 00:01:55.700
these officials to search
people's homes, places, papers,

00:01:57.710 --> 00:02:00.910
the kinds of things that
the Fourth Amendment lists

00:02:01.985 --> 00:02:06.400
in ways that people thought was not okay.

00:02:06.400 --> 00:02:09.530
The Fourth Amendment
was primarily concerned

00:02:09.530 --> 00:02:11.770
with a couple of things.

00:02:11.770 --> 00:02:16.770
One, a case involving
seditious libel investigation,

00:02:19.200 --> 00:02:20.940
it's a case called Entick,

00:02:20.940 --> 00:02:25.090
and a warrant was issued
authorizing Entick,

00:02:25.090 --> 00:02:26.440
that's the subject of the warrant,

00:02:26.440 --> 00:02:31.263
his arrest and the seizure of
all of his books and papers

00:02:32.180 --> 00:02:35.713
so that he could be prosecuted
for seditious libel.

00:02:36.713 --> 00:02:39.710
That case isn't as well
known as the second case,

00:02:39.710 --> 00:02:42.530
which is called the
Writs of Assistance case,

00:02:42.530 --> 00:02:47.530
and basically the Writs
of Assistance involved

00:02:48.250 --> 00:02:52.870
customs inspectors who
were trying to crack down

00:02:52.870 --> 00:02:57.870
on smuggling that was
affecting Boston's economy.

00:02:59.680 --> 00:03:04.680
So to aid in that task, inspectors
used writs of assistance

00:03:06.380 --> 00:03:07.810
that were issued by the king

00:03:08.690 --> 00:03:13.690
and authorized the inspectors
both to draft assistance,

00:03:13.770 --> 00:03:15.970
hence the name, writs of assistance,

00:03:15.970 --> 00:03:18.310
and to search any place where

00:03:18.310 --> 00:03:20.750
smuggled goods might be concealed.

00:03:20.750 --> 00:03:22.440
- [Orin] The Framers wanted
to put an end to that,

00:03:22.440 --> 00:03:24.700
and so they said no general
warrants are allowed

00:03:24.700 --> 00:03:26.920
and searches and seizures
have to be reasonable.

00:03:26.920 --> 00:03:29.600
That really means is the
government can't just stop anyone,

00:03:29.600 --> 00:03:31.510
arrest anyone, break into someone's house.

00:03:31.510 --> 00:03:34.720
There are limits as to
what the government can do.

00:03:34.720 --> 00:03:36.790
- [Kim] But what are those limits?

00:03:36.790 --> 00:03:39.770
What determines probable
cause for a search,

00:03:39.770 --> 00:03:43.370
and what renders a search
and seizure unreasonable?

00:03:43.370 --> 00:03:45.030
- [Orin] Yeah, what counts as unreasonable

00:03:45.030 --> 00:03:46.970
is a really big question.

00:03:46.970 --> 00:03:49.890
There are different answers
different courts have suggested,

00:03:49.890 --> 00:03:52.480
but the basic idea is that first,

00:03:52.480 --> 00:03:54.230
if the government has a valid warrant,

00:03:54.230 --> 00:03:55.870
a search or seizure is reasonable,

00:03:55.870 --> 00:03:58.647
if the warrant, if a judge
has signed off and said,

00:03:58.647 --> 00:04:00.360
"Yeah the government has probable cause

00:04:00.360 --> 00:04:02.380
to search this place for
particular evidence."

00:04:02.380 --> 00:04:03.950
Then the government can do that.

00:04:03.950 --> 00:04:05.810
And then the Supreme
Court has laid out a bunch

00:04:05.810 --> 00:04:08.210
of what they call exceptions
to the warrant requirement,

00:04:08.210 --> 00:04:09.930
which are also reasonable searches.

00:04:09.930 --> 00:04:13.050
So for example, if a person
consents to a search,

00:04:13.050 --> 00:04:14.620
that's reasonable.

00:04:14.620 --> 00:04:17.400
Or in the case of a car,
a car can be searched

00:04:17.400 --> 00:04:19.440
without a warrant based on probable cause.

00:04:19.440 --> 00:04:21.860
That's called the automobile exception.

00:04:21.860 --> 00:04:23.530
There are rules that
govern when the police

00:04:23.530 --> 00:04:25.410
can stop somebody temporarily.

00:04:25.410 --> 00:04:27.380
When the government needs an arrest,

00:04:27.380 --> 00:04:28.610
they need probable cause.

00:04:28.610 --> 00:04:30.660
There are basically
all sorts of rules that

00:04:30.660 --> 00:04:33.160
the Supreme Court has laid out
on a bunch of different cases

00:04:33.160 --> 00:04:35.960
that say what counts as an
unreasonable search or seizure.

00:04:35.960 --> 00:04:38.110
The Supreme Court has
said that probable cause

00:04:38.110 --> 00:04:41.120
means a fair probability
that evidence will be found

00:04:41.120 --> 00:04:42.760
in a particular place or

00:04:42.760 --> 00:04:44.700
that a particular person
committed a crime.

00:04:44.700 --> 00:04:47.570
So fair probability is the language.

00:04:47.570 --> 00:04:49.770
Now that's not something
the Supreme Court has said,

00:04:49.770 --> 00:04:51.540
that's not 50%, that doesn't mean

00:04:51.540 --> 00:04:52.980
it's more probable than not.

00:04:52.980 --> 00:04:55.920
It just means there's
pretty good reason to think

00:04:55.920 --> 00:04:58.030
that there's evidence
in a particular place

00:04:58.030 --> 00:05:00.610
or a particular person committed a crime.

00:05:00.610 --> 00:05:01.800
So it doesn't mean a hunch.

00:05:01.800 --> 00:05:03.294
It doesn't mean the officer just

00:05:03.294 --> 00:05:05.350
had the idea pop into his head.

00:05:05.350 --> 00:05:08.311
But it also doesn't mean
that the officer is certain.

00:05:08.311 --> 00:05:10.300
There's just gotta be
a pretty good reason,

00:05:10.300 --> 00:05:11.850
but not certainty to think that

00:05:11.850 --> 00:05:14.670
that person committed the crime
but there's evidence there.

00:05:14.670 --> 00:05:16.750
- [Kim] But when I asked Professor
Meares the same question,

00:05:16.750 --> 00:05:19.630
she wasn't convinced
it was so easy to tell

00:05:19.630 --> 00:05:22.430
what counts as probable cause.

00:05:22.430 --> 00:05:27.430
So what counts as a true probable cause

00:05:27.600 --> 00:05:30.089
to issue a warrant upon?

00:05:30.089 --> 00:05:32.050
- [Tracey] (sighs)

00:05:32.050 --> 00:05:34.940
- [Kim] Sorry, we could
just skip this instead.

00:05:34.940 --> 00:05:36.320
- [Tracey] Let's take a second.

00:05:36.320 --> 00:05:37.823
I taught this today.

00:05:39.370 --> 00:05:41.710
These aren't questions that
you can just simply answer.

00:05:41.710 --> 00:05:44.320
No one can, actually.

00:05:44.320 --> 00:05:48.470
There is, literally I taught today

00:05:48.470 --> 00:05:52.400
the fact that there is no real law

00:05:52.400 --> 00:05:54.360
on what probable cause is.

00:05:54.360 --> 00:05:57.570
It's inherently a factual determination.

00:05:57.570 --> 00:05:59.720
- [Kim] So how does this work in practice?

00:05:59.720 --> 00:06:01.810
I asked Professor Kerr
if it's the case that

00:06:01.810 --> 00:06:04.460
a police officer has to convince a judge

00:06:04.460 --> 00:06:06.970
that there's probable
cause to issue a warrant.

00:06:06.970 --> 00:06:08.830
- [Orin] Yeah, so it
can come up in two ways.

00:06:08.830 --> 00:06:10.850
In some cases, the Supreme Court says

00:06:10.850 --> 00:06:13.230
that the police have
to go to a judge first

00:06:13.230 --> 00:06:16.660
and get a warrant and then
they have to convince the judge

00:06:16.660 --> 00:06:19.700
that what they're about to do
is based on probable cause.

00:06:19.700 --> 00:06:21.850
In another case, it's come
up when the government

00:06:21.850 --> 00:06:24.300
has searched first or arrested first,

00:06:24.300 --> 00:06:26.170
and then they come back with the evidence

00:06:26.170 --> 00:06:28.070
or come back with the
person who was arrested

00:06:28.070 --> 00:06:29.470
and then there's a hearing as to whether

00:06:29.470 --> 00:06:30.510
there was probable cause

00:06:30.510 --> 00:06:31.910
for the arrest that already occurred.

00:06:31.910 --> 00:06:33.640
So either way, the standards are the same.

00:06:33.640 --> 00:06:35.600
It's that fair probability idea.

00:06:35.600 --> 00:06:37.080
Ultimately, up to a judge

00:06:37.080 --> 00:06:38.660
whether the police were right or wrong

00:06:38.660 --> 00:06:40.270
in doing what they did.

00:06:40.270 --> 00:06:42.490
- [Kim] Interesting, so
there is a little bit of

00:06:42.490 --> 00:06:46.420
prior legwork involved in some cases.

00:06:46.420 --> 00:06:50.243
What happens in cases when
it might be really important

00:06:50.243 --> 00:06:55.243
to get evidence, say if
there's a bomb threat?

00:06:56.100 --> 00:06:57.465
- [Orin] So there are some rules

00:06:57.465 --> 00:07:01.050
that allow searches or
seizures without a warrant,

00:07:01.050 --> 00:07:03.070
under what they call
exigent circumstances.

00:07:03.070 --> 00:07:05.510
That basically means
there was an emergency.

00:07:05.510 --> 00:07:08.300
So the government had to act
without a search warrant.

00:07:08.300 --> 00:07:10.430
And so, if there's a ticking time bomb

00:07:10.430 --> 00:07:13.120
that they think is gonna
go off in a package

00:07:13.120 --> 00:07:14.630
and they've got good
reason to think there is

00:07:14.630 --> 00:07:16.010
this ticking time bomb in the package,

00:07:16.010 --> 00:07:18.540
they don't have to say, hey
we're gonna go find a judge

00:07:18.540 --> 00:07:20.140
because by the time they do that,

00:07:20.140 --> 00:07:21.260
the bomb might have gone off.

00:07:21.260 --> 00:07:22.778
They can search that package

00:07:22.778 --> 00:07:25.393
under this exigent circumstances idea.

00:07:26.610 --> 00:07:28.950
So that's an exception to the rules,

00:07:28.950 --> 00:07:31.590
although beyond that,
there's no difference between

00:07:31.590 --> 00:07:34.030
a serious case and a less serious case

00:07:34.030 --> 00:07:34.863
under the Fourth Amendment.

00:07:34.863 --> 00:07:36.010
They're kind of all serious cases.

00:07:36.010 --> 00:07:39.220
So the courts have to follow
and the police have to follow

00:07:39.220 --> 00:07:42.650
the same rules in less serious
and more serious cases.

00:07:42.650 --> 00:07:44.270
- [Kim] Professor Meares
gave me an example

00:07:44.270 --> 00:07:46.660
of what seemed like a less serious case,

00:07:46.660 --> 00:07:49.010
but it's still a really
interesting example

00:07:49.010 --> 00:07:52.580
of what counts as an
unreasonable search and seizure.

00:07:52.580 --> 00:07:54.000
- [Tracey] I'll give you one more case

00:07:54.000 --> 00:07:55.830
that I'm sure the high
school students would love

00:07:55.830 --> 00:07:58.320
and my students love it.

00:07:58.320 --> 00:08:03.320
It's a case where a person
was sitting in a noodle shop

00:08:03.840 --> 00:08:08.250
in front of a window, eating
a big bowl of noodles,

00:08:08.250 --> 00:08:10.590
clear soup with noodles,

00:08:10.590 --> 00:08:14.510
and a police officer walks by
the person eating the noodles

00:08:14.510 --> 00:08:17.820
and notices something floating
in the bowl of noodles.

00:08:17.820 --> 00:08:20.730
So he enters into the store

00:08:20.730 --> 00:08:22.540
where the person is eating the noodles.

00:08:22.540 --> 00:08:25.860
And the person has left
temporarily the bowl of noodles

00:08:25.860 --> 00:08:28.683
to get a napkin or go to
the bathroom or something.

00:08:28.683 --> 00:08:31.970
And then the police officer
approaches the bowl,

00:08:31.970 --> 00:08:33.900
picks up the person's spoon,

00:08:33.900 --> 00:08:38.200
and stirs the noodles to
see if he can find anything,

00:08:38.200 --> 00:08:41.210
and some baggies of
crack float to the top.

00:08:41.210 --> 00:08:44.450
Did the person have a reasonable
expectation of privacy

00:08:44.450 --> 00:08:45.283
in their food?

00:08:45.283 --> 00:08:46.510
- [Kim] In their soup?

00:08:46.510 --> 00:08:47.760
- [Tracey] In their soup.

00:08:49.710 --> 00:08:51.200
- [Kim] How did they rule?

00:08:51.200 --> 00:08:55.640
- [Tracey] They ruled that
the stirring was a search.

00:08:55.640 --> 00:09:00.440
So if it is a search, i.e.,
that you have a subject of

00:09:00.440 --> 00:09:02.850
interest in privacy in your soup

00:09:02.850 --> 00:09:06.300
that society is prepared
to recognize as reasonable,

00:09:06.300 --> 00:09:11.020
then the police officer
would have to get a warrant

00:09:11.020 --> 00:09:13.530
before stirring the soup.

00:09:13.530 --> 00:09:15.150
- [Kim] This raises the question,

00:09:15.150 --> 00:09:18.320
where do I have Fourth Amendment rights?

00:09:18.320 --> 00:09:21.290
Are some locations
protected and not others?

00:09:21.290 --> 00:09:23.170
- [Orin] The building block
of the Fourth Amendment

00:09:23.170 --> 00:09:25.150
is really that you have
Fourth Amendment rights

00:09:25.150 --> 00:09:29.790
in your home, in your
pockets, in your packages,

00:09:29.790 --> 00:09:32.520
but you don't have Fourth
Amendment rights outside.

00:09:32.520 --> 00:09:34.800
You don't have Fourth
Amendment rights in what

00:09:34.800 --> 00:09:37.390
you're doing outside or
if the police want to walk

00:09:37.390 --> 00:09:40.260
on what they call open
fields, at public streets,

00:09:40.260 --> 00:09:43.050
you don't have Fourth
Amendment rights in that.

00:09:43.050 --> 00:09:45.150
So thinking about how the
Fourth Amendment applies

00:09:45.150 --> 00:09:46.240
just in the physical world,

00:09:46.240 --> 00:09:47.870
if the police want to
break into your home,

00:09:47.870 --> 00:09:48.990
they need a search warrant.

00:09:48.990 --> 00:09:51.810
If the police want to watch
you walk down the street,

00:09:51.810 --> 00:09:53.530
they don't need anything.

00:09:53.530 --> 00:09:55.120
It's not a search or a seizure,

00:09:55.120 --> 00:09:58.110
so they can do anything they
want, just watching you.

00:09:58.110 --> 00:09:59.510
If they want to arrest you,

00:09:59.510 --> 00:10:03.080
they need probable cause to
believe you committed a crime.

00:10:03.080 --> 00:10:05.120
So those are really the building blocks

00:10:05.120 --> 00:10:07.260
of the Fourth Amendment that going back

00:10:07.260 --> 00:10:09.160
to 18th century technology.

00:10:09.160 --> 00:10:10.620
And then the question becomes, alright,

00:10:10.620 --> 00:10:13.860
well how do you update
that to a modern world?

00:10:13.860 --> 00:10:16.060
- [Tracey] It's also the case
that the Fourth Amendment

00:10:16.060 --> 00:10:18.770
applies to seizures,

00:10:18.770 --> 00:10:23.570
what police have to show
before they arrest a person

00:10:23.570 --> 00:10:26.650
or temporarily stop them

00:10:26.650 --> 00:10:31.360
or briefly pat their body on the outside,

00:10:31.360 --> 00:10:33.030
their body for weapons.

00:10:33.030 --> 00:10:36.500
All of those questions are
Fourth Amendment questions

00:10:36.500 --> 00:10:40.680
as are questions involving how much force

00:10:40.680 --> 00:10:44.830
police actually use to effect the arrest.

00:10:44.830 --> 00:10:48.790
Once we've decided that
an arrest is legitimate.

00:10:48.790 --> 00:10:51.380
So we haven't talked about
any of those questions,

00:10:51.380 --> 00:10:53.250
but the Fourth Amendment governs

00:10:53.250 --> 00:10:58.250
all of that and remember
the Fourth Amendment governs

00:10:58.460 --> 00:11:01.780
all of those topics in a context in which

00:11:01.780 --> 00:11:06.180
the Framers' motivations for
enacting the Fourth Amendment

00:11:06.180 --> 00:11:08.380
have absolutely nothing to do

00:11:08.380 --> 00:11:10.990
with most of those
things I just mentioned.

00:11:10.990 --> 00:11:13.330
- [Kim] But the Fourth
Amendment also has implications

00:11:13.330 --> 00:11:16.040
that go beyond warrants and seizures.

00:11:16.040 --> 00:11:18.120
Professor Meares thinks
that one of the biggest

00:11:18.120 --> 00:11:21.680
Fourth Amendment issues
today is discretion.

00:11:21.680 --> 00:11:24.210
- [Teresa] Many people have thought

00:11:24.210 --> 00:11:28.755
much more about how the Fourth
Amendment protects privacy

00:11:28.755 --> 00:11:33.130
than how the Fourth Amendment
addresses discretion.

00:11:33.130 --> 00:11:34.580
- [Kim] And by discretion in this case,

00:11:34.580 --> 00:11:37.640
you mean what they get to decide
to do on their own, right?

00:11:37.640 --> 00:11:39.430
- [Tracey] Exactly so.

00:11:39.430 --> 00:11:42.400
And one way to see the difference
between those two things

00:11:42.400 --> 00:11:47.400
is to think about a medal
detector in an airport.

00:11:48.200 --> 00:11:52.310
So long as everyone is
required to go through

00:11:52.310 --> 00:11:56.560
the metal protector, there
is no law enforcement

00:11:56.560 --> 00:11:59.040
discretion involved.

00:11:59.040 --> 00:12:01.700
- [Kim] So this is kind
of where the public safety

00:12:01.700 --> 00:12:06.700
aspect comes in, that
if we're all subject to

00:12:08.500 --> 00:12:13.500
non-invasive procedures
at the whim of police.

00:12:14.310 --> 00:12:16.990
It's a little different
than if individuals

00:12:16.990 --> 00:12:19.720
are kind of plucked for that reason.

00:12:19.720 --> 00:12:23.300
- Right, it's just pointing
out that targeting,

00:12:23.300 --> 00:12:26.100
the targeting of people or invasions

00:12:26.100 --> 00:12:31.023
is a different problem than
the invasion problem itself.

00:12:32.690 --> 00:12:36.920
And so, if all we ever do is think about

00:12:36.920 --> 00:12:39.990
privacy invasion without thinking about

00:12:39.990 --> 00:12:41.440
the discretion problem,

00:12:41.440 --> 00:12:43.440
then we're missing something important.

00:12:43.440 --> 00:12:45.450
- [Kim] For Professor Kerr, however,

00:12:45.450 --> 00:12:48.070
the most important issue at stake today

00:12:48.070 --> 00:12:49.340
regarding the Fourth Amendment

00:12:49.340 --> 00:12:52.310
is how it will apply to electronic media.

00:12:52.310 --> 00:12:53.716
- [Orin] Well, the big question I think is

00:12:53.716 --> 00:12:55.140
how the Fourth Amendment is going to apply

00:12:55.140 --> 00:12:58.270
to searches and seizures
of computers, of emails,

00:12:58.270 --> 00:12:59.532
the Internet,

00:12:59.532 --> 00:13:02.990
new technologies that
we all use every day,

00:13:02.990 --> 00:13:06.090
we wake up in the morning and
hope on line or go on Twitter

00:13:06.090 --> 00:13:09.370
or whatever you use online.

00:13:09.370 --> 00:13:12.270
Lots and lots of communication
online all around the world

00:13:13.140 --> 00:13:15.040
and how does the Fourth
Amendment apply to that

00:13:15.040 --> 00:13:17.470
is something that the courts
are beginning to answer

00:13:17.470 --> 00:13:19.400
but they've only started to answer.

00:13:19.400 --> 00:13:22.210
Some really, really hard
questions of kind of translating

00:13:22.210 --> 00:13:25.300
that physical world concept
of the Fourth Amendment

00:13:25.300 --> 00:13:27.920
to the world of computers
that we live today.

00:13:27.920 --> 00:13:30.650
So as we've learned, the
Fourth Amendment ensures

00:13:30.650 --> 00:13:33.170
that government authorities
can't raid homes,

00:13:33.170 --> 00:13:36.590
pockets or papers without a
warrant issued by a judge,

00:13:36.590 --> 00:13:39.110
and then only if there's a probable cause

00:13:39.110 --> 00:13:41.420
to believe there is reason for a search.

00:13:41.420 --> 00:13:45.040
What's tricky is deciding
what counts as probable cause

00:13:45.040 --> 00:13:47.390
and whether it's discriminatory to select

00:13:47.390 --> 00:13:50.390
some people to search but not others.

00:13:50.390 --> 00:13:52.210
And how do we translate
the Fourth Amendment

00:13:52.210 --> 00:13:55.230
to a world where our
papers are all digital.

00:13:55.230 --> 00:13:57.750
Should the police be permitted
to search our cellphones,

00:13:57.750 --> 00:14:02.100
our browsing histories, our
private social media profiles?

00:14:02.100 --> 00:14:03.990
You can learn more about
the Fourth Amendment

00:14:03.990 --> 00:14:06.520
by checking out the National
Constitution Center's

00:14:06.520 --> 00:14:08.450
interactive constitution

00:14:08.450 --> 00:14:12.423
and Khan Academy's resources
on US government and politics.