The Warren Court.

The decision of Brown v. Board of Education of Topeka in 1954 is perhaps the most famous all of all Supreme Court cases. It overturned the equally far-reaching decision of Plessy v. Ferguson in 1896.

In the Plessy case,  the court decided by a 7-1 margin that “separate but equal” public facilities could be provided to different racial groups.

In his majority opinion, Justice Henry Billings Brown pointed to schools as an example of the legality of segregation.

“The most common instance of this is connected with the establishment of separate schools for white and colored children, which has been held to be a valid exercise of the legislative power even by courts of States where the political rights of the colored race have been longest and most earnestly enforced,” he said.

The lone dissenter, Justice John Marshall Harlan, wrote, “In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott Case (referencing the controversial 1857 decision about slavery).”

“Our Constitution is color-blind, and neither knows nor tolerates classes among citizens,” he added.

The Plessy decision institutionalized Jim Crow laws that allowed racial segregation to continue for decades.

By 1951, the issue was heading back to the court for review, and the outlook didn’t look promising for the forces that had united to overturn the Plessy decision. The NAACP and their attorney, Thurgood Marshall, had been in court for years and had won some isolated victories.

The Brown case was actually a combination of five cases involving segregation at public schools in Kansas, Delaware, Virginia, South Carolina, and the District of Columbia.

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The justices who first heard the case in 1953 were divided. Chief Justice Fred Vinson, from Kentucky, wasn’t convinced that Plessy should be overturned on constitutional grounds. Several other justices were undecided and possibly leaning toward upholding Plessy. Four justices seemed to be committed to overturning Plessy, but five votes were needed, and there were concerns about a divided court.

Another concern was about how the Brown decision, if it overturned segregation, could be enforced in 19 states and the District of Columbia without widespread violence.

The court decided in June 1953 to hear more arguments in the case later in the year. But in September 1953, Chief Justice Vinson died suddenly from a heart attack. President Dwight Eisenhower had promised the next Supreme Court opening to the politically powerful Earl Warren from California, who was favored desegregation.

Warren was appointed chief justice and the court met in a private session in December to discuss the Brown case. Two justices took notes of the meeting, which indicate that Warren made a powerful opening statement that made it clear the court was heading toward the end of segregation.

Warren talked about the abilities of Marshall and the legal team from the NAACP.

“If oral argument proved anything, the arguments of Negro counsel proved that they are not inferior. I don’t see how we can continue in this day and age to set one group apart from the rest and say that they are not entitled to exactly the same treatment as all others,” Warren said.

“At present, my instincts and tentative feelings would lead me to say that in these cases we should abolish, in a tolerant way, the practice of segregation in public schools,” he said.

Warren also made it clear he would work with the justices to find “unanimity and uniformity, even if we have some differences.”

Two justices—Robert Jackson and Stanley Reed—had concerns about the Supreme Court making a decision that would be better left to Congress. There were also questions about Marshall’s arguments, which referred much to the sociological evidence about the damage caused by segregation (and not as much to prior case law).

On May 17, 1954, Warren read the final decision: The Supreme Court was unanimous in its decision that segregation must end. In its next session, it would tackle the issue of how that would happen.

“We conclude that in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal,” Warren said.

The announcement made international headlines and more than a few newspapers saw the decision as vindication for Justice Harlan’s dissent in the 1896 Plessy case.

Not long after the Brown decision, in October 1954, Justice Robert Jackson died and President Eisenhower picked his replacement from the Second Circuit Court: Judge John Marshall Harlan, the grandson and namesake of the famous dissenter.

Ernesto Miranda arrest photo, 1963.

Currently, there is a big debate about the Miranda warning and Boston terror suspect Dzhokhar Tsarnaev. Federal investigators said after Tsarnaev’s detention that he wouldn’t be read his Miranda rights under something called the “public safety exemption.”

Under the exemption, police can interrogate a suspect without advising him or her of Miranda rights if they believe the suspect could have information about an imminent threat to public safety.

That exemption allowed investigators to interrogate Tsarnaev while in custody, without informing Tsarnaev of his rights to a lawyer and his right to stay silent.

According to an AP report, after 16 hours of questioning, a representative of the United States Attorney’s office read Tsarnaev his Miranda warning, and the suspect stopped talking to investigators.

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The “Miranda” in the Miranda warning was Ernesto Miranda. He was arrested in March 1963 in Phoenix and confessed while in police custody to kidnapping and rape charges. His lawyers sought to overturn his conviction after they learned during a cross-examination that Miranda wasn’t told he had the right to a lawyer and had the right to remain silent. (Miranda had signed a confession that acknowledged that he understood his legal rights.)

The Supreme Court overturned Miranda’s conviction in 1966 in its ruling for Miranda v. Arizona, which established guidelines for how detained suspects are informed of their constitutional rights.

The Miranda warning actually includes elements of the Fifth Amendment (protection against self-incrimination), the Sixth Amendment (a right to counsel) and the 14th Amendment (application of the ruling to all 50 states).

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First, there isn’t one official Miranda warning that is read to a suspect by a police officer. Each state determines how their law enforcement officers issue the warning. The Supreme Court requires that person is told about their right to silence, their right to a lawyer (including a public defender), their ability to waive their Miranda rights, and that what they tell investigators under questioning, after their detention, can be used in court.

The Miranda warning is only used by law enforcement when a person is in police custody (and usually under arrest) and about to be questioned. Anything you say to an investigator or police officer before you’re taken into custody—and read your Miranda rights—can be used in a court of law, which includes interviews where a person is free to leave the premises and conversations at the scene of an alleged crime.

In fact, Ernesto Miranda came into a Phoenix police station voluntarily to answer questions in 1963 and also took place in a police lineup.

The police can ask you questions about identification, including your name and address, without a Miranda warning. And they can use any spontaneous expressions made by you as evidence—for example, if you say something without the prompting of police before you’re taken into custody.

Of course, you’re still protected by your Miranda rights—after you’re detained—even if you waive them after an arrest. At any time, during an interrogation, you can stop answering questions and ask for a lawyer.

In the case of Dzhokhar Tsarnaev, investigators probably felt they had enough evidence to charge him and win a case in court without any of the information Tsarnaev volunteered before he was read his rights.

As for Ernesto Miranda, though his original conviction was set aside by the Supreme Court ruling, he was retried and convicted, and was in jail until 1972–then in and out of jail several more times until 1976. After being released in 1976, he was fatally stabbed during a bar fight. His suspected killer was read his Miranda rights and didn’t answer questions from police. There was never a conviction in Miranda’s death.

Scott Bomboy is the editor-in-chief of the National Constitution Center.

Senator Richard Durbin, an Obama supporter (on issues other than drones), chaired the subcommittee hearing on Tuesday.

Durbin was openly disappointed that the Obama administration didn’t send a witness to talk about the secretive program.

“I do want to note for the record, my disappointment that the administration declined to provide a witness to testify at today’s hearings. I hope that in future hearings we’ll have an opportunity to work with the administration more closely,” he said.

Durbin also said he hoped the administration understood its newfound technological killing power “is still grounded in words written more than 200 years ago.”

Related Link: Read the complete testimonies

Political opponents Ted Cruz and Al Franken agreed with Durbin that the scope of the executive branch’s power was under question.

The administration says it has the power to undertake the drone tactics per a 2001 congressional resolution in the wake of the 9/11 attacks.

The Subcommittee on the Constitution, Civil Rights and Human Rights has released the official testimony of the six witnesses, which show a cross-section of concerns and justifications about the program. here’s a brief look at what they said.

General James Cartwright

The retired general, a former vice chairman of the Joint Chiefs of Staff, explained that drones are cheap, at an average cost of $4 million to $5 million, compared with a conventional jet fighter, at $150 million. They are also cheap to fly and have advanced optics.

“[They’re] not hard to see why military operations are significantly improved by this technology. Drones offer many advantages over other conventional forces in counterterrorism,” he said.

“Legitimate questions remain about the use, authorities, and oversight of armed drone activities outside an area of declared hostility,” he acknowledged. “While I believe based on my experience all parties involved in this activity have acted in the best interests of the country, as with other new technologies, adaptation of policy and law tends to lag implementation of the capability.”

Farea Al-Muslimi

Al-Muslimi, a Yemini activist who was partly educated in the United States,  told the committee how drone attacks hurt the reputation of the United States in his country.

“Just six days ago, my village was struck by a drone, in an attack that terrified thousands of simple poor farmers. The drone strike and its impact tore my heart much as the tragic bombings in Boston last week tore your hearts and also mine,” he said.

Al-Muslimi said the drone attacks, especially those that killed innocent civilians, made his job as an advocate for America in Yemen “almost impossible.”

“Even when drone strikes target and kill the right people, it is at the expense of creating the many strategic problems I have discussed today,” he added.

Al-Muslimi also believes the United States should compensate the families of civilians killed or injured in the attacks.

Peter Bergen

The former CNN national security analyst is now at New America Foundation, a Washington think tank on security issues.

He testified that based on his foundation’s estimates, between 2,003 and 3,321 people were killed by drone strikes in Pakistan between 2004 and April 2013, with most of the fatal attacks undertaken by the Obama administration.

Many of those attacks, he said, were on low-level militants. There were differing estimates for civilian casualties.

Bergen also said much of the information about drones is out in public after years of questions.

“As of early 2013, the drone campaign was no longer Washington’s worst kept secret; it was, for all intents and purposes, out in the open. This new openness is a good thing. As U.S. Supreme Court Justice Louis Brandeis observed a century ago, ‘Sunlight is the best disinfectant.’”

Rosa Brooks

A Georgetown professor and senior fellow at the New America Foundation, Brooks said the United States needs to address legal and procedural issues.

“I believe that the president and Congress can and should take action to place U.S. targeted killing policy on firmer legal ground,” she said.

“In particular, we need to address the rule of law implications of U.S. targeted killing policy. Every individual detained, targeted, and killed by the U.S. government may well deserve his fate. But when a government claims for itself the unreviewable power to kill anyone, anywhere on earth, at any time, based on secret criteria and secret information discussed in a secret process by largely unnamed individuals, it undermines the rule of law.”

Colonel Martha McSally

Retired Air Force Colonel Martha McSally served for 22 years and is familiar with the tactics involved in drone attacks.

McSally said the use of drones can help due process in some ways: “You actually have the lawyers sitting side by side with you” as a drone remains in position, unlike conventional aircraft. “You can wait until the moment you have positive identification and all the criteria have been met,” she said.

“For targeted strikes of fleeting targets in low air defense threat environments, an RPA [remotely piloted aircraft] is the best platform to choose to ensure precision, persistence, flexibility, and minimize civilian casualties,” she said.

McSally also quoted Air Force Lieutenant General David Deptula, the first general responsible for overseeing drones, about the advantages of using the aircraft.

“Adversary falsehoods regarding inaccuracy and collateral damage divert attention from the fact that the massive intentional damage, intentional killing of civilians, and intentional violations of international law are being conducted by Al Qaeda and the Taliban–not U.S. ‘drones,” said Deptula, in a passage used by McSally in her remarks.

Ilya Somin

The law professor from George Mason University said that “serious constitutional and other problems arise if the U.S. government fails to take proper care to ensure that the use of drones is strictly limited to legitimate terrorist targets.”

Somin doesn’t have an issue with the Obama administration targeting senior terrorist leaders who are American citizens.

“Given the existence of a state of war, I believe that the Obama administration was correct to conclude in its recently released white paper that it is legal for the government to target U.S. citizens who are ‘senior operational leader[s] of al Qa’ida or an associated force,’” he said.

Somin said the “procedural safeguards” need to be established.

“What we can hope to achieve is an oversight system that greatly diminishes the risk of serious abuse: targeted killings that are undertaken recklessly or worse still–for the deliberate purpose of eliminating people who do not pose any genuine threat, but are merely attacked because they are critics of the government, or otherwise attracted the wrath of policymakers.”

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The petition in the case of Kachalsky v. Cacace asked the Supreme Court to rule on two questions: Does the Second Amendment permit handguns for self-defense outside the home? And, do state officials violate the Second Amendment by denying handgun carry licenses in certain cases?

The writ of certiorari petition for the case was backed by the Second Amendment Foundation. The justices, as the process works at the court, didn’t disclose why they declined to hear the case.

Five New Yorkers brought the case to court after they were denied permits to carry their handguns in public. That state’s law requires people who want to carry a concealed handgun to prove they have a special reason before getting a license.

Alan Gura, an attorney involved with two other gun-related cases that were heard by the court, was on the legal team seeking a date in front of the nine justices. He had publicly said before the court’s decision on Monday that the case was a threat to the Second Amendment.

“The New York law is in complete conflict with the idea that people enjoy a Second Amendment right to bear arms,” Gura said in a pre-decision story from USA Today.

Gura was part of the team that argued the landmark District of Columbia v. Heller case in 2008.

The Heller ruling established that “the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.”

That right, however, was not found by the court to be absolute.

In 2010, the court ruled in McDonald v. Chicago that those rights extended to individual states through the 14th Amendment.

The issues of gun rights and gun control are at the forefront of public opinion this week, as the Senate starts debates over proposed gun control legislation after last year’s Sandy Hook shootings.

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The case of Dred Scott v. Sanford was one of the most controversial decisions in the court’s history. At the time, the Supreme Court’s majority came from pro-slavery states or had connections to pro-slavery presidents.

Link: Library of Congress resources

The case had been in the court system for more than a decade. Scott had been born into slavery in 1795. In subsequent years, he lived in two parts of the United States that didn’t allow slavery, Illinois and Wisconsin, along with his master.

When his current master died in 1846, Scott filed suit on behalf of himself and his wife, also a slave, to gain their freedom. The case was heard by three other courts as it made its way to Washington.

The Dred Scott decision came just two days after President James Buchanan took office, and it set the tone for his controversial term that led to the Civil War.

Chief Justice Roger Taney gave the court’s opinion; it had ruled 7-2 against Scott.

Taney announced that slaves were not citizens of the United States and had no rights to sue in federal courts, and in fact, blacks couldn’t be citizens.

“There are two clauses in the Constitution which point directly and specifically to the negro race as a separate class of persons, and show clearly that they were not regarded as a portion of the people or citizens of the Government then formed,” Taney argued.

The court also declared the Missouri Compromise of 1820 to be unconstitutional. And it said that Congress did not have the authority to prohibit slavery in the territories.

The decision was celebrated in the South and by slavery supporters. There was outrage in the North and among abolitionists.

One person who was publicly upset with the Dred Scott decision was Lincoln, who was a rising figure in the newly formed Republican Party. The Dred Scott case was a focal point of the famous debates between Lincoln and Stephen Douglas in 1858.

The decision also made the Republican Party a national force, and led to the division of the Democratic Party during the 1860 presidential elections.

The growing power of the Republicans, who received considerable support from the northern states, directly led to fears in the South that slavery would be ended, and those fears started the momentum for secession and the Civil War.

Scott died in 1858 about a year after he and his family had gained their freedom, when his owner (under pressure from her husband) sent the Scotts back to their original owners, who promptly freed them.

Taney passed away in 1864. A year later, a request to include a bust of Taney in a hall that recognized chief justices was blocked by Republicans.

“I declare that the opinion of the chief justice in the case of Dred Scott was more thoroughly abominable than anything of the kind in the history of courts. Judicial baseness reached its lowest point on that occasion,” said Charles Sumner, a leading Radical Republican.

Sumner had been brutally beaten and almost killed on the Senate floor in 1856 when he made antislavery remarks. His attacker was Representative Preston Brooks of South Carolina.

After the Civil War, the 13th Amendment and 14th Amendment effectively overturned the Dred Scott decision.

Today, the words “Dred Scott” are tossed out by politicians when they vehemently try to link a recent Supreme Court decision to a historically bad precedent. In 2010, for example, some critics compared the Citizens United v. FEC decision to it.

In 2007, Lynette Jackson, Scott’s great-great-granddaughter, told NPR on the 150th anniversary of the decision that the lesson from the case is that people should try to do what is right.

“Even if it doesn’t look like it’s going to work out, in the end, it usually does,” she said.

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The statements at issue:

There is “a phenomenon that is called perpetuation of racial entitlement. … Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes. … I don’t think there is anything to be gained by any senator to vote against continuation of this act.”

 – Supreme Court Justice Antonin Scalia, comment from the bench on February 27, discussing the history of Congress’ repeated renewal of the Voting Rights Act of 1965.

“Entitlement: the feeling or belief that you deserve to be given something (such as special privileges).”

 – Merriam-Webster Learner’s Dictionary, in the second-listed definition of “entitlement.”

“We are talking about the enforcement power that the Constitution gives to Congress to make these judgments to ensure protection of fundamental rights. This is a situation in which Congress is given a power which is expressly given to it to act upon the states in their sovereign capacity.”

 – U.S. Solicitor General Donald B. Verrilli, Jr., responding to Justice Scalia at that hearing before the court last week.

“All men are … endowed by their Creator with certain unalienable Rights.”

 – The opening line of the Declaration of Independence.

We checked the Constitution, and…

It is extremely doubtful that, when James Madison sat down to compile what would become the Constitution’s Bill of Rights, that he thought he was dealing with handouts or gratuities that the government would generously provide for the people, but might later withdraw. It is also extremely doubtful whether the 40th Congress thought that when it passed what would become the 15th Amendment to end racial discrimination in voting–the amendment that Congress was enforcing with the Voting Rights Act of 1965.

Indeed, in Madison’s time, in the Founding era, virtually everyone in the national government knew that the Constitution would never have been ratified if the government did not fulfill the promise of the Declaration’s opening line about rights that were “unalienable.” From the beginning, then, the concept of civil rights has meant something very lofty, and probably permanent.

It might have been only an unfortunate coincidence that Justice Scalia last week belittled the Voting Rights Act as a “racial entitlement” on the day after the 144th anniversary of Congress’s approval of the proposed 15th Amendment.

But, leaving that aside, the justice’s comment raised the profound question of whether Congress, having once passed a law to enforce rights endowed by the Constitution, has the authority to change its mind and take back rights.

No legislation, of course, is beyond being repealed. It has long been an unbreakable rule that one Congress cannot bind a future Congress to maintain the same laws on the books. Times change, and laws that once were deemed absolutely necessary may become anachronisms–and, sometimes, embarrassments. There once was a federal law, the Fugitive Slave Act, that required the return of runaway slaves to their owners.  It had no use, of course, after the 13th Amendment abolished the institution of slavery.

Justice Scalia’s use of the phrase “racial entitlements” was his assessment of the provision in the Voting Rights Act of 1965 that requires some state and local governments to get permission in Washington before they may put into effect any new election law or procedure. That duty was imposed on them by Congress, starting nearly a half-century ago, because those governments had persisted in denying the right to vote to minorities, and no other method seemed to work to put a stop to that.

From Justice Scalia’s perspective, that requirement is no longer needed, because he is persuaded that the condition that led to its passage no longer prevails, in the South or anywhere else in the country.  But does it advance an agenda to strike down that law to suggest that the only reason Congress has repeatedly re-enacted it, with rising majorities, is that it was simply a politically popular law that remains intact only because it would be too risky to vote against it?

There may well be a difference, and a truly profound one, between passing an ordinary piece of legislation–say, adopting an increase in the highway speed limit because roads are better–and enacting a statute that seeks to enforce a constitutional right. The former is a matter of convenience, the latter may well be a matter of protecting human dignity. As long as a right remains in the Constitution (and Congress has never repealed a constitutional right), there may well be an abiding right to keep enforcing it.

A constitutional amendment passed with the noblest of motives may well become a nullity if its enforcement lapses.  In fact, the 13th, 14th and 15th Amendments were rendered almost completely useless in the decades after the Civil War and Reconstruction, when the “black codes” emerged amid waves of blatant racial hatred.   In fact, even the courts joined in a process of turning those amendments into mere temporary “entitlements” that could be, in practice, withdrawn.

With a historical record like that, it may well be no surprise at all that Congress is unwilling to let a civil rights law be undone.  Just last week, for example, Congress chose to renew the federal Violence Against Women Act, a law that hardly could be dismissed as a mere “entitlement” for America’s women. It was, indeed, deemed necessary for their survival.

And the chances are very good that the renewal passed because many considered it not only the politically expedient thing to do, but simply the right thing to do. It might not be too much to say that it was the noble thing to do.

Even a civil rights law can have or develop defects, and Congress has the authority to fix those, and the courts have authority to strike them down if they turn into constitutional violations. But neither process, one hopes, is driven by a desire more lofty than currying political favor.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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One of the first struggles will take place over whether to again raise the federal debt ceiling.

Just 10 years ago, the federal debt limit was capped at just over $6.4 trillion; by the end of last year, it was just under $16.4 trillion, and government spending had almost reached the limit, triggering a major political battle that ended when the Congress agreed to a temporary increase due to expire in May.

Although the Congress began setting statutory limits on borrowing for certain expenditures as long ago as 1917, during World War I, and on overall debt limits in 1939, debt ceiling increases have generally been approved routinely, with only sporadic and futile attempts to stop the process. Lately, however, the issue has gained new traction (meaning, more serious attempts to prevent the generally routine increases), and therein lies the constitutional dilemma.

The Constitution places authority over federal spending in the legislative branch as one of the principal means by which the people, through their representatives, maintain control over the scope of the federal government.

At the same time, Section 4 of the 14th Amendment states that “The validity of the public debt of the United States, authorized by law . . . shall not be questioned.”

What exactly does that mean?  The debt ceiling increases are Congress’ means of authorizing the executive branch to borrow money–from citizens, private entities, even foreign governments.

But because the validity of the debt is not to be questioned, has the Congress authorized the necessary borrowing by having approved the spending for which the money was borrowed?

If Congress and the president fail to reach an agreement (perhaps more spending cuts in exchange for the authorization to borrow more), will the president attempt to devise his own, possibly extraconstitutional means, to get around the problem?

Will the United States be required to default on its obligations despite the constitutional admonition that those debts be beyond question?

The constitutional conundrum extends to defense policy, too.

While the president is commander in chief of the armed forces, there are serious questions about his authority to keep Congress in the dark about the secretive means often employed in carrying out military activities, such as the recent use of drone strikes in countries with which the United States is not at war.

There are also constitutional difficulties in the decision by the executive to order the killing of American citizens who are suspected (by unspecified officials), but not charged with, the support of enemy forces.

Following repeated cases of indefinite detention and waterboarding of prisoners, there is increasing unrest in Congress about presidential actions in the efforts to combat and disrupt terrorist activities.

And then there’s the recurring question of potential federal interference with citizen rights to privacy–and just how much privacy the Constitution guarantees.

Critics of the abortion-limiting Roe v. Wade decision, including Supreme Court nominee Robert Bork, argued that there is no constitutional right to privacy, but the Ninth Amendment states that the actual enumeration of rights in the Constitution does not suggest that citizens do not retain their other rights.

If that includes a right to privacy, how much may the government authorize private companies to give information about a citizen’s activities to officials of government agencies?

Again, a question that is likely to be raised in the coming months as the Congress wrestles with the persistent tension between constitutionally guaranteed liberties and the government’s need to ensure national security.

In every session of Congress, one thing is clear: major battles over the direction of government inevitably call into play the language, and interpretations, of the Constitution. This year will be no different.

Mickey Edwards is the National Constitution Center-Penn Law visiting scholar for 2013. Edwards, a former congressman, is an author, lecturer, and vice president of the Aspen Institute. His most-recent book is The Parties Versus The People: How To Turn Republicans And Democrats Into Americans, published by Yale University Press.

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In Hollingsworth v. Perry, scheduled for argument on March 26, the court will determine whether the Equal Protection Clause of the 14th Amendment precludes the state of California from defining marriage as a union between a man and a woman (and also whether the petitioners have standing in the case, under Article III).

In U.S. v. Windsor, with arguments slated for the following day, the court will examine the Defense of Marriage Act, determining whether the law violates the Fifth Amendment‘s guarantee of equal protection of the laws. (The court will also decide whether it has jurisdiction to decide the case, and whether the petitioners have standing.)

The question of the government’s power to create and enforce legislation has a storied history in American law and jurisprudence.

In 1819, in the case of McCulloch v. Maryland, the court offered a broad interpretation of the Necessary and Proper Clause of the Constitution to hold that Congress is permitted to create laws within its enumerated powers, so long as those laws are reasonably related to a legitimate government interest.

McCulloch set the precedent for the so-called “rational basis test,” which presumes the constitutionality of governmental intervention so long as such intervention is in service of that legitimate interest.

In the decades to follow, however, that presumption of constitutionally was challenged as the nation began to conceive of specific classes of people in need of protection.

In 1868, the legislature enacted the 14th Amendment to the Constitution, mandating that:

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

Since its passage, courts and policymakers have been working to give teeth to this notion of equal protection, to define the scope of the law and to create enforcement mechanisms that will ensure the protection of vulnerable classes of individuals throughout society.

In the process, the nation has had to decide how it categorizes its citizens, and how it determines who constitutes a special class worthy of protection under the law.

In 1934, in the case of United States v. Carolene Products, Justice Harlan Stone applied rational basis scrutiny to hold that a law regulating milk quality was constitutional under the Interstate Commerce Clause.

In footnote, however, Stone hinted at the possibility of heightened scrutiny in select cases and as applied to certain people. In the fourth note, often called “the most famous footnote in constitutional law,” Stone wrote:

“There may be a narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those in the first 10 amendments, which are deemed to be equally specific when held to be embraced within the 14th Amendment.”

Here, Stone implied a place in American jurisprudence for a more rigorous evaluation of constitutionality for controversies invoking the application of the 14th Amendment.  This famed footnote suggested the possibility of multiple levels of judicial scrutiny; for the first time, the court acknowledged that there may exist specific categories of people whose protection interests outweigh the concerns of the government.

In 1943’s Hirabayashi v. United States, the Supreme Court applied the Carolene precedent to assert a presumed unconstitutionality in laws evoking race-based classifications.

Such legislation, wrote then-Chief Justice Harlan Stone, is inherently suspect, “by [its] very nature, odious to a free people whose institutions are founded upon the doctrine of equality.” Such categorization continued Stone, writing to a unanimous bench, “would be controlling here, were it not for the fact that the danger of espionage and sabotage, in time of war or threatened invasion, calls upon the military authorities to scrutinize every relevant fact bearing on the loyalty of populations in the danger areas.”

Though the state interest in Hirabayashi–the implementation of curfews for Japanese-Americans living in the U.S. in the wake of Pearl Harbor–was deemed constitutional, here, the court sought to clarify the language of the Carolene decision to construct a heightened level of judicial scrutiny for equal protection cases dealing with issues of racial classification–what would become known as the “strict scrutiny test.”

More than two decades later, in Loving v. Virginia (1967), the court applied this strict scrutiny standard to rule in favor of equal protection for the first time.

In Loving, the court took up the question of whether a Virginia anti-miscegenation law – preventing interracial marriage–violated the 14th Amendment’s Equal Protection Clause.  In Loving, Chief Justice Earl Warren wrote, “at the very least, the Equal Protection Clause demands that racial classifications, especially suspect in criminal statutes, be subjected to the ‘most rigid scrutiny…’ and, if they are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which it was the object of the Fourteenth Amendment to eliminate.”

Writing for a unanimous bench, Warren made clear that any racial classification that compromised equal protection was to be held to the strictest level of scrutiny. In Loving, the court affirmed that such an abridgement must be necessary to serve a compelling government interest.

And Warren went a step further. “Marriage,” he wrote, “is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival… To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the 14th Amendment, is surely to deprive all the State’s citizens of liberty without due process of law.”

The court’s invocation of “fundamental rights” here set the precedent for a new classification of protection. In the years to follow, the court would declare that in addition to marriage, such issues as procreation, contraception, family relationships, and child rearing were classified as “fundamental,” all subject to the strict scrutiny standard for determining equal protection.

In 1976, in Craig v. Boren, the court also crafted a level of intermediate scrutiny–a presumption of unconstitutionality unless a law is “substantially related” to an “important” government interest–in cases of gender-based discrimination.

To date, the U.S. Supreme Court has yet to issue a ruling that ascribes a level of scrutiny to questions of sexual orientation.

However, in recent years, lower courts have begun to employ their own scrutiny tests. In 2008, the California Supreme Court, in In re Marriage Cases, adopted a strict scrutiny standard to state laws that discriminate on the basis of sexual orientation. In 2012, in United States v. Windsor–the same case that the federal Supreme Court will hear this March–the U.S. Court of Appeals for the Second Circuit evoked an intermediate level of scrutiny in questions over the constitutionality of the Defense of Marriage Act.

This spring, as the Roberts court considers the legal issues in Windsor and Hollingsworth, justices must consider what levels of scrutiny to apply in their analyses.

If they cast the critical issue as the fundamental right to marry, they will likely take precedent from Loving to adopt a strict scrutiny test. If, however, they define the central question as one of sexual orientation, the level of scrutiny to apply will become a legal question unto itself, one the court may need to answer in order respond to the issue of same-sex marriage.

How the court defines the level of judicial scrutiny in these cases could have far-reaching implications for the questions of marriage equality in the United States.

Abigail Perkiss is an assistant professor of history at Kean University in Union, New Jersey, and a fellow at the Kean University Center for History, Politics and Policy.

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Lyle Denniston looks at President Barack Obama’s historic discussion of gay rights in his inaugural address, and its constitutional significance.

The statement at issue:

“We, the people, declare today that the most evident of truths – that all of us are created equal – is the star that guides us still, just as it guided our forebears through Seneca Falls, and Selma, and Stonewall…”

– President Obama, second inaugural address, at the Capitol, January 21.

We checked the Constitution, and…

Ideas that are nowhere mentioned specifically in the Constitution can become a part of the basic document’s history, because some moving force in society makes that happen. When the moving force turns out to be America’s president, that can happen instantly. That might have been what the nation witnessed during President Obama’s second inaugural address Monday.

By adding a single word to a phrase about equality, he elevated gay rights to rank as importantly as women’s rights and the rights of racial minorities.

It has been known for some time that this president strongly favors constitutional equality for gays and lesbians. He strongly supported–and ultimately won from Congress–the end of the “don’t ask, don’t tell” policy that made it almost impossible for homosexuals to serve in the military services and be true to their own identities.

After a period of contemplation, President Obama supported at least some form of legal equality for same-sex marriage, and he explicitly endorsed his lawyers’ conclusion that the Defense of Marriage Act’s ban on federal benefits for married gays and lesbians violates the Constitution. His lawyers will be making that point directly to the Supreme Court in coming weeks.

But as important, practically and symbolically, as those gestures have been, the president went beyond them in his second inaugural address on Monday. He put gay rights at the top of his second-term agenda by referring, without explanation, to “Stonewall.” It perhaps is not a word that has meaning for many Americans, but it holds the deepest meaning for gays and lesbians; for them, it marked the beginning of their movement toward equality.

On June 28 and 29, 1969, at the Stonewall Inn in New York City’s Greenwich Village, police raids on that small bar frequented by gays provoked the first significant resistance to pervasive harassment of homosexuals. In short, the raids produced riots by hundreds of gays and their supporters. One history of the gay rights movement refers to those riots as “The Big Bang,” and has called the incident “the start of a movement to decriminalize, demedicalize, and devillainize us.”

Never before has a president given to that incident the historic rank that President Obama has just assigned it. He linked it directly to two other resistance events that marked historic turning points for other equality movements–for women, and for racial minorities.

The president referred to Seneca Falls and that, of course, was a recollection of the first women’s rights convention in U.S. history, the gathering at the Wesleyan Chapel in Seneca Falls, New York, on July 19 and 20, 1848. On July 19, Elizabeth Cady Stanton read a declaration of women’s grievances, patterned closely after the Declaration of Independence.

The president also mentioned Selma, a reminder of state troopers’ assault in March 1965 on demonstrators who had assembled on the Edmund Pettus Bridge in that Alabama city, as part of ongoing protests of the denial of voting rights to blacks. The Selma attack led to a mass march lasting five days, over the 54 miles from Selma to the state capital of Montgomery, to continue the protests. The March was led, of course, by the Reverend Martin Luther King, Jr., whose memory the president and the nation saluted on Monday.

When Seneca Falls occurred, there was no mention of women’s rights in the Constitution. That would not occur for another 72 years, when the 19th Amendment was added to give women the right to vote. It would be another 51 years before the Supreme Court would begin to locate some notion of constitutional equality for women in experiences other than voting. Seneca Falls, though, would remain the rallying incident for women for all of those years of waiting.

The Selma march had more immediate results, partly because the Constitution did, after all, provides some guarantees of racial equality in the 13th, 14th, and 15th Amendments.  But before Selma, there was no political will for Congress to give those guarantees meaningful expression in federal laws.

By the time President Obama mentioned the Stonewall riots, some 46 years had passed, and America’s attitude about gay rights had only lately begun to change toward wider acceptance, even though gay rights do not yet have constitutional statute.

It obviously was the president’s intention to assist, and perhaps even to accelerate, the country’s apparent change of mind. He not only mentioned Stonewall in his address, but also declared that “Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law–for if we are truly created equal, then surely the love we commit to one another must be equal as well.”

That comment might be seen as simply another way for the president to demonstrate that he now favors same-sex marriage. But, when the comment followed the reference to Stonewall, the words “treated like anyone else under the law” had broader, and potentially even constitutional, significance.

A president, alone, cannot guarantee constitutional equality to anyone. But he no doubt had concluded that he can try to help the country along on “the journey” he seeks to travel. “You and I, as citizens, have the power to set this country’s course,” he said, in a confident summons to citizen engagement.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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Quite simply, there is a school of thought that President Obama already has the power to ignore the ceiling on the national debt imposed by Congress.

Last year, the Democrats and Republicans locked horns on new legislation to raise the debt ceiling, which would enable the federal government to continue to borrow money to continue its operations.

The compromise gave us the current fiscal cliff scenario, where steep tax hikes and sharp spending cuts start in January 2013, triggering a likely recession, unless Congress can reach the deal they avoided last year.

The brainstorm behind the fiscal cliff was that it would be so nasty that Democrats and Republican would be forced to reach a bipartisan deal, or face political disaster. So they agreed to work together in a committee, which then spectacularly failed.

And another doomsday clock is ticking: the debt ceiling limit is expected to be reached again by February, even if the fiscal cliff is averted.

The debt ceiling is a critical point in the current fiscal cliff talks. Democrats want an agreement now that includes a new debt ceiling as part of the solution.

The Republicans seem reluctant to bargain that point.

“We do have some leverage with the debt ceiling increase, more than we do right now,” South Dakota Republican Senator John Thune told Fox News on Friday. “The debt ceiling at least requires Congress to take action.”

Or does it?

The argument over the 14th Amendment as a nuclear debt threat goes like this: Section IV says that “the validity of the public debt of the United States, authorized by law… shall not be questioned.”

Therefore, if you believe that the “public debt” can’t be questioned in any context, the debt ceiling itself is unconstitutional.

One of the more recent proponents of the 14th Amendment threat is former President Bill Clinton, who broached the idea in July 2011.

In an online interview with The National Memo, Clinton said Newt Gingrich’s Republican caucus first came up with the 14th Amendment idea during Clinton’s time as president, and Clinton’s team researched the constitutional implications.

Clinton said he would use the 14th Amendment “without hesitation, and force the courts to stop me.”

As recently as Thursday, Obama spokesman Jay Carney said the 14th Amendment was off the table as a negotiating ploy.

“This administration does not believe that the 14th Amendment gives the president the power to ignore the debt ceiling–period,” Carney said.

But that doesn’t mean other key Democrats agree with the president. On Friday, Senate Majority Whip Dick Durbin said the White House needed to consider the 14th Amendment as an option. “I don’t think they ought to rule it out,” he said.

Representative Peter Welch (D-Vermont) is spearheading a petition in Congress next week that asks President Obama to use the 14th Amendment. He told The Huffington Post that the president could be backed into a corner if the Republicans stand fast on steep spending cuts as the price for raising the national debt ceiling—and the 14th Amendment would be his only option.

So what would happen if President Obama decided to just borrow more without congressional approval?

The original intent of the 14th Amendment was to address concerns related to the Civil War. It’s undecided if the “public debt” section of the amendment is applicable to current circumstances.

What makes it nuclear is the uncertainty of the events that would follow the constitutional bombshell. The Republicans in the House could move to impeach President Obama, but his conviction in the Senate would be highly unlikely.

The court fight over the 14th Amendment option could be protracted and complicated. There were dozens of legal opinions last July when the idea was first made public.

But the bigger concern would be the reaction of global markets to a potential constitutional crisis over the United States’ national debt.

The 2011 budget debacle resulted in the first-ever downgrade of America’s debt.

Josh Marshall, the editor of Talking Points Memo, says that the potential financial price of a 14th Amendment move may be enough to keep it out of the fiscal cliff talks.

“You’d also now have what amounted to two classes of Treasuries—the good ones and ones with an asterisk next to them. And as soon as you have that, at least some of the fixedness and clarity of what a US Treasury obligation represents would be blurred,” he said.

Scott Bomboy is the editor-in-chief of the National Constitution Center.

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