The Bill of Rights (2 Volume Set) (Magill's Choice)

The Bill of Rights

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MAGILL’S C H O I C E

The Bill of Rights Volume 1

The Bill of Rights The Amendments Issues edited by Thomas T. Lewis Mount Senario College

Salem Press, Inc. Pasadena, California Hackensack, New Jersey

Copyright © 2002, by Salem Press, Inc. All rights in this book are reserved. No part of this work may be used or reproduced in any manner whatsoever or transmitted in any form or by any means, electronic or mechanical, including photocopy, recording, or any information storage and retrieval system, without written permission from the copyright owner except in the case of brief quotations embodied in critical articles and reviews. For information address the publisher, Salem Press, Inc., P.O. Box 50062, Pasadena, California 91115. Essays in these volumes first appeared in Encyclopedia of the U.S. Supreme Court (2001), Censorship (1997), and American Justice (1996). Many essays have been updated, and new material has been added. ∞ The paper used in these volumes conforms to the American National Standard for Permanence of Paper for Printed Library Materials, Z39.48-1992 (R1997). Library of Congress Cataloging-in-Publication Data The Bill of Rights / edited by Thomas T. Lewis. p. cm. — (Magill's choice) Includes bibliographical references and index. ISBN 1-58765-062-2 (set : alk. paper) — ISBN 1-58765-063-0 (v. 1 : alk. paper) — ISBN 1-58765-064-9 (v. 2 : alk. paper) 1. United States. Constitution. 1st-10th Amendments 2. Civil rights—United States. I. Lewis, Thomas T. (Thomas Tandy) II. Series. KF4750 .B55 2002 342.73'085--dc21 2002002007

printed in the united states of america

TABLE OF CONTENTS Publisher’s Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix Contributor List . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiii Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xv The Bill of Rights Bill of Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Case law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Common law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Constitutional interpretation . . . . . . . . . . . . . . . . . . . . 17 Constitutional law. . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Constitution, U.S. . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Declaration of Independence . . . . . . . . . . . . . . . . . . . . 40 English Bill of Rights . . . . . . . . . . . . . . . . . . . . . . . . . 45 Federalism. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 Fundamental rights . . . . . . . . . . . . . . . . . . . . . . . . . . 57 Incorporation doctrine . . . . . . . . . . . . . . . . . . . . . . . . 61 Inverse incorporation . . . . . . . . . . . . . . . . . . . . . . . . 67 State constitutions . . . . . . . . . . . . . . . . . . . . . . . . . . 70 Virginia Declaration of Rights . . . . . . . . . . . . . . . . . . . . 73 The Amendments First Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . 77 Second Amendment . . . . . . . . . . . . . . . . . . . . . . . . . 84 Third Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . 87 Fourth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . 88 Fifth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 Sixth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . 99 Seventh Amendment . . . . . . . . . . . . . . . . . . . . . . . . 104 Eighth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . 105 Ninth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . 106 Tenth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . 112 The Issues Academic freedom . . . . . . . . . . . . . . . . . . . . . . . . . 119 Assembly and association, freedom of . . . . . . . . . . . . . . . 122 Automobile searches . . . . . . . . . . . . . . . . . . . . . . . . 126 v

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Bad tendency test . . . . . . . . Bail . . . . . . . . . . . . . . . . Birth control, right to . . . . . . Blasphemy . . . . . . . . . . . . Capital punishment . . . . . . . Censorship . . . . . . . . . . . . Chilling effect . . . . . . . . . . Civil rights and liberties . . . . . Clear and present danger test . Commerce clause . . . . . . . . Commercial speech . . . . . . . Comstock Act . . . . . . . . . . Conscientious objection. . . . . Contract, freedom of . . . . . . Counsel, right to. . . . . . . . . Cruel and unusual punishment Double jeopardy . . . . . . . . . Due process, procedural . . . . Due process, substantive . . . . Elastic clause . . . . . . . . . . . Espionage Acts. . . . . . . . . . Exclusionary rule . . . . . . . . First Amendment absolutism . . First Amendment balancing . . First Amendment speech tests . Flag desecration . . . . . . . . . Gag order . . . . . . . . . . . . Gay and lesbian rights . . . . . . Grand jury . . . . . . . . . . . . Hatch Act . . . . . . . . . . . . Hate crimes . . . . . . . . . . . Hicklin rule . . . . . . . . . . . Indian Bill of Rights . . . . . . . Indigent criminal defendants. . Japanese American relocation . Judicial scrutiny . . . . . . . . . Jury, trial by . . . . . . . . . . . Jury composition and size. . . . Libel . . . . . . . . . . . . . . .

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Loyalty oaths . . . . . . . . . . . . . . Miranda rights . . . . . . . . . . . . . Miscegenation laws . . . . . . . . . . Natural law. . . . . . . . . . . . . . . Newsroom searches . . . . . . . . . . Nuremberg Files. . . . . . . . . . . . Obscenity and pornography . . . . . Petition, right of . . . . . . . . . . . . Preferred freedoms doctrine . . . . . Innocence, presumption of . . . . . . Preventive detention . . . . . . . . . Prior restraint . . . . . . . . . . . . . Privacy, right of . . . . . . . . . . . . Privileges and immunities. . . . . . . Probable cause. . . . . . . . . . . . . Property rights. . . . . . . . . . . . . Public forum doctrine. . . . . . . . . Public use doctrine . . . . . . . . . . Released time . . . . . . . . . . . . . Religion, establishment of . . . . . . Religion, freedom of . . . . . . . . . School prayer . . . . . . . . . . . . . Search and seizure . . . . . . . . . . Search warrant requirement . . . . . Sedition Act of 1798 . . . . . . . . . . Seditious libel . . . . . . . . . . . . . Self-incrimination, immunity against. Silver platter doctrine . . . . . . . . . Smith Act . . . . . . . . . . . . . . . Speech and press, freedom of . . . . Speedy trial . . . . . . . . . . . . . . States’ rights . . . . . . . . . . . . . . Stop and frisk rule. . . . . . . . . . . Symbolic speech . . . . . . . . . . . . Takings clause . . . . . . . . . . . . . Time, place, and manner regulations Unprotected speech. . . . . . . . . . Witnesses, confrontation of . . . . . . Zoning . . . . . . . . . . . . . . . . . vii

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242 246 249 251 253 255 257 263 266 267 268 270 273 279 283 284 293 296 297 297 304 312 313 318 320 326 328 331 332 334 342 343 349 350 354 361 364 367 368

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Appendices The Declaration of Independence . . . . . . . . . . . . . . . . . 375 The Constitution of the United States of America . . . . . . . . 379 Amendments to the U.S. Constitution . . . . . . . . . . . . . . . 391

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PUBLISHER’S NOTE This two-volume contribution to the Magill’s Choice series of reference works is an encyclopedic guide to the first ten amendments to the U.S. Constitution—those amendments collectively known as the U.S. Bill of Rights because of the important rights and liberties they were framed to protect from government abuses. The set’s purpose is to provide information that is comprehensive, accessible, accurate, and up to date. Articles in these volumes focus on the first ten amendments and have little to say about other parts of the Constitution; however, the Bill of Rights alone is such a large topic that it easily fills these two volumes. For the convenience of the readers, essays are divided under four broad headings: Overviews, Amendments, Issues, and Court Cases. The first three sections fill volume 1. The fourteen essays in the first section survey the history and significance of the Bill of Rights within the broader contexts of the principles of constitutional law and U.S. legal history. Special attention is paid here to the subject of incorporation—the term applied to the process through which the U.S. Supreme Court has used the Fourteenth Amendment to extend most of the rights enumerated in the first ten amendments to the states. The Fourteenth Amendment is not, by definition, part of the Bill of Rights; however, it may be considered the key to the Bill. When the Founders adopted the first ten amendments to the Constitution in 1791, the amendments’ protections were generally understood to apply only to the federal government. It would not be until many years after the Fourteenth Amendment was adopted in 1868 that the Supreme Court began incorporating into that amendment’s due protection clause protections of the Bill of Rights, thereby holding the states to the same standards as the federal government. The second section of essays contains individual articles on each of the first ten amendments, arranged in numerical order. The full text of each amendment can be found in the U.S. Constitution, which is reprinted as an appendix at the back of both volumes. The eighty-one essays in the third section of the set address specific issues relating to the Bill of Rights. These articles cover subjects ranging from “Academic freedom” to “Zoning,” with essays on subjects as broad as censorship, civil rights and liberties, due process, and freedom of religion, and as narrow as chilling effect, the right to counsel, and Miranda rights. Readers can find the subjects they seek under their alphabetically ix

The Bill of Rights

arranged titles or by consulting the comprehensive index in volume 2. The fourth section of essays, which accounts for the bulk of volume 2, consists of 281 brief articles on the individual court cases through which the rights in the Bill of Rights have been defined and extended. It is through these cases that the Supreme Court has provided authoritative interpretations of the Bill of Rights, thereby establishing doctrines and principles of constitutional law. These articles cover Supreme Court decisions through June, 2001. Essays in this set are written and formatted to be accessible to high school and college students and other nonspecialist readers. Each essay opens with labeled “Description” and “Significance” paragraphs that briefly explain the subject and summarize its significance in constitutional history. Essays in the Issues and Court Case sections contain additional top matter lines identifying the Bill of Rights amendments that are most relevant to the essays’ subjects. Because of the close relationship between the Bill of Rights and the Fourteenth Amendment, many “Relevant Amendment” lines also cite that amendment. As is the case with all Magill’s Choice sets, the bulk of the material in The Bill of Rights is taken from earlier Salem Press publications. Most of the articles come from the recent Encyclopedia of the U.S. Supreme Court (2001), a recipient of the American Library Association Reference and Adult Services Division award for “Outstanding Reference Source for 2001.” Most of the remaining articles come from American Justice (1996), and Censorship (1997)—both earlier winners of the same award. Additionally, the set’s Editor, Thomas T. Lewis—who was coeditor of Encyclopedia of the U.S. Supreme Court—has written entirely new articles on such subjects as the Virginia Declaration of Rights, the English and the Indian bills of rights, inverse incorporation, blasphemy, and the so-called Nuremberg files. Professor Lewis has also updated and expanded many other articles from the earlier sets. Four appendices from the Encyclopedia of the U.S. Supreme Court have been brought further up to date and adapted to be more pertinent to the Bill of Rights. These appendices include a glossary, a time line, an annotated bibliography, and a table summarizing the stances on the Bill of Rights taken by every justice who has sat on the Supreme Court. The appendix material also includes the complete texts of the Declaration of Independence and the U.S. Constitution and its amendments—all of which appear at the end of each volume. The final item in volume 2 is a comprehensive subject index. x

Publisher’s Note

The Editors of Salem Press wish to express their thanks to Professor Lewis for the enthusiasm and dedication that he brought to this project. We also wish to thank the many contributors who wrote the articles. Their names are signed to each article and are listed in the front of volume 1.

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CONTRIBUTOR LIST Nobuko Adachi

Jennifer Eastman

Charles F. Bahmueller

Daryl R. Fair

Bernard W. Bell

John Fliter

Steve D. Boilard

Michael J. Garcia

P. J. Brendese III

Evan Gerstmann

Beau Breslin

Richard A. Glenn

Joseph V. Brogan

Robert Justin Goldstein

Michael H. Burchett

Diana R. Grant

William H. Burnside

Steven P. Grossman

Beau David Case

John Gruhl

H. Lee Cheek, Jr.

Timothy L. Hall

Alisa White Coleman

Sarah E. Heath

Rebecca Davis

Eric Howard

Steven J. Dunker

John C. Hughes

Philip A. Dynia

Patricia Jackson

Illinois State University Center for Civil Education Rutgers Law School

Sacramento, California State University of New York at Albany Skidmore College La Salle University Limestone College

John Brown University Ohio State University

Brewton-Parker College University of Texas at Arlington Georgia Southern University Northeastern State University Loyola University

Clark University

College of New Jersey Kansas State University Arapahoe Community College Loyola Marymount University Millersville University Oakland University

California State University at Stanislaus University of Baltimore School of Law University of Nebraska at Lincoln University of Mississippi University of Cincinnati Los Angeles, California Saint Michael’s College Davenport College xiii

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Robert Jacobs

Kurt X. Metzmeier

Dwight Jensen

Wayne D. Moore

Central Washington University

University of Kentucky College of Law

Marshall University

Virginia Polytechnic Institute and State University

Alan E. Johnson

Kenneth F. Mott

Brecksville, Ohio

Gettysburg College

Gae R. Johnson

Bruce G. Peabody

Northern Arizona University

University of Texas at Austin

Sugwon Kang

John B. Peoples

Hartwick College

University of Tennessee at Chattanooga

Marshall R. King

Stephen F. Rohde

Maryville University at St. Louis

Los Angeles, California

Paul Lermack

Paul F. Rothstein

Bradley University

Georgetown University School of Law

Thomas T. Lewis

Christopher Shortell

Mt. Senario College

Los Angeles, California

Lester G. Lindley

Christopher E. Smith

Nova Southeastern University

Michigan State University

Matthew Lindstrom

Chuck Smith

Siena College

West Virginia State College

James J. Lopach

G. Thomas Taylor

University of Montana

University of Maine

William C. Lowe

Susan L. Thomas

Mount St. Clare College

Hollins University

William Shepard McAninch

Dean Van Bibber

University of South Carolina School of Law

Fairmont State College

Joseph M. McCarthy

Donald V. Weatherman

Suffolk University

Lyon College

Priscilla H. Machado

Marcia J. Weiss

United States Naval Academy

Point Park College

Patrick Malcolmson

Richard L. Wilson

St. Thomas University

University of Tennessee at Chattanooga xiv

INTRODUCTION Although Americans clearly cherish the many liberties and privileges enumerated in the first ten amendments to the U.S. Constitution, public opinion surveys have repeatedly shown that most citizens have only vague notions about the specific contents of the amendments collectively known as the Bill of Rights. Indeed, many confuse these amendments with other parts of the Constitution and with other documents, especially the Declaration of Independence. However, no political or legal field is more interesting or worthy of study than the Bill of Rights and the twenty-seven liberties and privileges they enumerate. The provisions in the Bill of Rights, as interpreted, and re-interpreted, by the U.S. Supreme Court, frequently have significant consequences on the lives of real people. Examples of contemporary Bill of Rights issues include laws requiring students in public schools to take tests for illegal drug use, the application of capital punishment to minors and persons with mental disabilities, the right of women to obtain legal abortions, public funding of educational services in private sectarian schools, the prohibition of religious ceremonies in public school activities, and the right of individuals to engage in controversial forms of expressive behavior—such as exotic dancing and flag desecration. These are just a few of the fascinating topics discussed within these two volumes. Challenges to Liberties. Throughout American history, international wars and fears of domestic violence have periodically surfaced and threatened to restrict the liberties guaranteed by the Bill of Rights. The dramatic terrorist attacks on Washington, D.C., and New York City on September 11, 2001, certainly had such an effect. Six weeks afterward, on October 25, the U.S. Congress enacted an omnibus law of some 342 pages called the USA Patriot Act. It was designed to expand the authority of law enforcement officials to monitor telephone conversations and Internet messages and to detain aliens on mere suspicion of terrorist activity. The American Civil Liberties Union and other libertarian groups alleged that the complex law undermined several constitutional guarantees, especially the Fourth Amendment’s rules concerning probable cause and search warrants. Then, on November 13, President George W. Bush issued a military order that authorized military tribunals to try noncitizens accused of terrorism. The tribunals were to be allowed to xv

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conduct secret trials without juries, despite the Sixth Amendment, and to disregard many principles of due process that are normally considered Fifth Amendment rights. Critics of President Bush’s order pointed to Ex Parte Milligan (1866), in which the Supreme Court rejected the use of military trials when the regular courts were in operation. Supporters of President Bush’s order, on the other hand, looked to another case, Ex Parte Quirin (1942), in which the Court approved trying eight suspected German saboteurs in military tribunals. The legal disputes surrounding what in late 2001 was being called the new “war on terrorism” demonstrated once again that interpretations of the Bill of Rights can determine the freedom and future prospects of ordinary people. Other Rights. These two volumes are devoted to the Bill of Rights and thus do not cover every right and liberty that Americans enjoy. The right to vote, for example, is not covered here, even though voting is considered a fundamental right of citizenship. Neither the original Constitution nor its first ten amendments addressed qualifications for the voting franchise, a matter that the Constitution left entirely up to the states. It is thus not the Bill of Rights, but the Fifteenth, Nineteenth, Twenty-fourth, and Twenty-sixth Amendments that authorize the federal courts to provide safeguards for the right to vote. Also, these two volumes do not include essays about the Thirteenth Amendment, which prohibits slavery, or about the various civil rights laws, which are designed to prohibit discrimination based on race, ethnicity, sex, and religion. On the other hand, these volumes may at times appear to range beyond the twenty-seven specific rights and liberties enumerated in the Bill of Rights. The Fifth Amendment, for instance, has a clause requiring government to employ “due process of law” whenever depriving persons of their life, liberty, or property. The broad concept of due process is often related to other guaranteed rights in the Constitution, such as the writ of habeas corpus, and the concept also subsumes many common law principles, as well as substantive rights to life, liberty, and property. The requirement for proof beyond a reasonable doubt in criminal prosecutions is an example of a common law principle that is considered to be a part of due process. Much more controversial is the doctrine of substantive due process, which recognizes substantive rights to life, liberty, and property, and requires government to justify any deprivation of these rights with an appropriate rationale. The Supreme Court has expanded the concept of liberty, moreover, to include a generic “right of privacy,” which refers to xvi

Introduction

personal autonomy, family relationships, and a woman’s right to terminate a pregnancy. The Ninth Amendment. Because of the special characteristics of the Ninth and Tenth Amendments, many works about the Bill of Rights deal almost exclusively with the first eight Amendments. The Ninth Amendment, which suggests the existence of rights not enumerated in the Constitution, is especially enigmatic and open to numerous interpretations. Because of its vagueness, some lawyers have looked upon the amendment as a refuge for litigants without cogent legal arguments, so that the phrase “relying on the Ninth Amendment” is understood to be almost humorous. However, James Madison and the other framers of the Bill of Rights did choose to include the Ninth Amendment, and they must have assumed that it had some practical application. Some scholars have interpreted the amendment in light of the framers’ commitment to the theory of natural rights, either based on a religious foundation or on an assumption of a shared human nature. Others have emphasized the provisions of the common law tradition, as in the establishment requirement that a criminal jury in a federal trial must be composed of twelve jurors. Still others have suggested that the amendment simply means that the absence of an enumerated right from the Constitution does not necessarily prove that such a right does not exist. In one significant Supreme Court case, Griswold v. Connecticut (1965), the Ninth Amendment’s application was overlapping with the doctrine of substantive due process, and it is possible that this broad reading of the amendment may become more common in the twenty-first century. The Tenth Amendment. Liberal critics of states’ rights and federalism often prefer to ignore entirely the Tenth Amendment, which gives states authority over matters not delegated to the federal government in the Constitution. A common complaint is that the amendment has allowed the states to enact undemocratic laws and to oppress members of racial minorities, especially in the time of slavery and Jim Crow. Although there is abundant historical support for this point of view, it is also true that Madison and other framers looked to the Tenth Amendment as a means of preventing abuses by the federal government, and they assumed that the states were bastions of liberty. Historically, the Supreme Court has often considered the application of the Tenth Amendment in relationship to the original Constitution’s commerce and elastic clauses—two clauses xvii

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that have allowed for expansive interpretations of congressional power. Because of their relevance to the Tenth Amendment, these volumes include essays relating to these two clauses. In addition, the Fourteenth Amendment, which was ratified in 1868, has expanded federal powers and reduced the states’ reserved powers within three broad areas: the privileges or immunities of citizens, the due process of law, and the equal protection of the laws. Incorporation. During the twentieth century, most of the provisions of the Bill of Rights were “incorporated” or “absorbed” into the Fourteenth Amendment, thus making these provisions binding on the state governments. It seems quite clear that James Madison intended that the Bill of Rights would only apply to the federal government, because he expected that the amendments would be placed in Article I, section 9, which explicitly limited the powers of Congress. Madison also proposed am additional amendment that would have made four rights applicable to the states, and he assumed that this failed amendment should be placed in section 10, which lists prohibitions on the state governments. In view of this history, the Supreme Court, in Barron v. Baltimore (1833), recognized that the first nine amendments were not binding on the states. In formulating the Fourteenth Amendment, there is considerable evidence that its framers expected that its “privileges or immunities” clause would subsume at least a few (perhaps most) of the rights in the Bill of Rights. In the Slaughterhouse Cases (1873), however, the Supreme Court rejected such a construction of the privileges or immunities clause, and it was not until the 1920’s that the Court seriously began to apply most of the Bill of Rights to the states by way of the Fourteenth Amendment’s due process clause. This fascinating topic is covered in the overview essay on incorporation and a number of essays on individual Supreme Court cases in the second volume. The most difficult choices about which materials to include in the guide relate to the Fourteenth Amendment’s mandate that states must provide every person with the “equal protection of the laws.” This equal protection clause, as its wording makes clear, was originally binding only on the state governments, not the national government. Racial segregation cases such as Plessy v. Ferguson (1896), were concerned with state statutes and did not have any real bearing on the federal government or the Bill of Rights. After World War II, however, the Supreme Court began interpreting the Fifth Amendment’s due process clause to incorporate an xviii

Introduction

equal protection requirement. Ironically, the Court cautiously endorsed this interpretation, often called “inverse incorporation,” when approving of the discriminatory treatment directed at Japanese Americans during World War II, and it firmly established the doctrine in Bolling v. Sharpe (1954), the landmark case that held that Congress’s own operation of segregated government schools in the national capital violated the Fifth Amendment. Since the Bolling ruling, many equal protection cases have directly applied to the Fifth Amendment, especially when the issues are gender discrimination and affirmative action. The various cases dealing with court-ordered busing, on the other hand, are not relevant to the Fifth Amendment, because none of them has ever dealt with federal policies. Controversies and Objectivity. Throughout American history, applications of the Bill of Rights in particular circumstances have been extremely controversial. In addition to their practical consequences, the study of these applications are intellectually compelling. Few Americans can be detached or unemotional when considering matters such as freedom for unpopular religious practices (such as peyote smoking), restrictions on the public support of popular religious practices (such as Christmas Nativity scenes), rules for searches and seizures by the police, or reproductive liberty versus fetal rights. Such topics frequently produce angry exchanges and occasionally even lead to violent confrontations. Justice Hugo L. Black once stated that most Americans assume that the Constitution supports the particular views that they endorse and prohibits those ideas and practices they dislike. This common tendency, in fact, seems to be equally true of liberals, conservatives, and moderates. Recognizing the influences of unconscious bias, the authors of the articles in these volumes have tried to be as dispassionate and objective as humanly possible, and they have emphasized factual information and avoided expressions of personal opinions. To the extent that it is possible, moreover, they have made every effort to be fair to viewpoints with which they may disagree. These volumes are not designed primarily for lawyers and scholars who possess a specialized knowledge in the field of constitutional law. Rather, they are intended for general readers and students attending high school or college. Thus, their writers have tried to use straightforward language and to define terms that are not part of the vocabulary of the person without advanced instruction. At the same time, the editors have not avoided difficult and challenging topics. While the writers and editors have tried xix

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to utilize an accessible style and a clarity of expression, they have not utilized misleading or overly simplistic analyses of complex legal issues. It has been a true pleasure to work on this project and to select the essays for inclusion in the volumes. I wish to express appreciation to the many fine scholars who have written these essays. In addition, I wish to thank R. Kent Rasmussen and the other editors of Salem Press for developing the project, helping in the selection of essays, and doing much of the actual work. Thomas T. Lewis Mount Senario College

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BILL OF RIGHTS Description: The first ten amendments to the U.S. Constitution, guaranteeing individual rights, such as freedom of speech, freedom of the press, separation of church and state, the right to counsel, the right against self-incrimination, and due process. Significance: The Bill of Rights has posed an endless series of challenges for the Supreme Court to interpret the scope of personal liberties and the limits of government power. When the Constitutional Convention adjourned in September, 1787, and submitted its new Constitution to a curious public, three of the remaining delegates refused to sign the new charter. One, George Mason of Virginia, declared that he would “sooner chop off this right hand than put it to a constitution without a Bill of Rights.” Fearing that Mason and other Antifederalists might scuttle the ratification of the new Constitution, James Madison promised his fellow Virginians that if they supported the new charter (and elected him to the First Congress), he would sponsor a Bill of Rights. Each side kept its end of the bargain. In December, 1791, the Bill of Rights was ratified, launching more than two hundred years of Supreme Court decisions interpreting, defining, and refining the nature of the relationship between the government and its citizens. The Constitution was essentially a plan of government, establishing the legislative, executive, and federal branches and delineating their powers and responsibilities. Although the Constitution purported to grant only limited powers to Congress to pass laws in specified areas, it also provided that Congress had the authority to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” This elastic catch-all clause worried those who feared that the Constitution would install an all-powerful national government, free to dominate the people and the states. It was the Bill of Rights that gave these critics some measure of solace that the new federal government would not become the same tyrannical seat of power that they had so recently fought to escape. From the outset, the Supreme Court played a special role in giving meaning to the Bill of Rights. In March of 1789, Thomas Jefferson wrote

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James Madison, the chief architect of the Bill of Rights. (Library of Congress)

to Madison that “the Bill of Rights is necessary because of the legal check which it puts into the hands of the judiciary.” Jefferson was referring to a “legal check” on unwarranted government interference with the rights of the citizens. The Bill of Rights touches on every realm of human affairs. It has fallen to the Supreme Court to interpret its elusive and elastic language. In every generation, the Court has been called on to grapple with the challenge of applying its 413 words, written in the late eighteenth century, to circumstances unknown to the authors, arising in the nineteenth, twentieth, and twenty-first centuries. The Bill of Rights protects both substantive and procedural rights. In contrast to the Constitution itself, which says what the government can do, the Bill of Rights says what the governmen cannot do. First Amendment. The most powerful articulation of individual rights against government intrusion is found in the First Amendment, which is

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considered by many to be the most important of all the Amendments. The opening words speak volumes about the purpose and intent of the Bill of Rights: “Congress shall make no law . . . ” These five words set the tone for all that follows. However, the simplicity is deceiving and the Supreme Court has the responsibility of deciding which laws pass constitutional muster and which do not. Specifically, under the First Amendment, Congress is prohibited from making laws “respecting an establishment of religion or prohibiting the free exercise thereof.” In one phrase, the First Amendment simultaneously guarantees the right of individuals to follow the beliefs and practices of their chosen religious faiths, while at the same time, it prohibits the government from singling out any particular religious denomination as a state-sponsored church. The First Amendment built what Jefferson called a “wall of separation” between church and state. The free exercise and establishment clauses generated great consternation for the Court on controversial issues. From prayer in school to religious symbols on public property, from religious invocations at high school graduations to vouchers using public funds to subsidize parochial schools, the Court struggled to ensure that government remains neutral, but not hostile, in matters of religion. The First Amendment next prohibits Congress from “abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” No portion of the Bill of Rights has engaged the Court’s attention with more intensity, drama, and public interest than its protection of freedom of expression and freedom of assembly. Volumes have been written about how and why the Court decided whether particular speech or gatherings are constitutionally protected. No majority of Supreme Court justices ever treated the protections guaranteed by the First Amendment as absolute. Instead, the Court has recognized exceptions for obscenity, libel, criminal solicitation, perjury, false advertising, and fighting words. Within and beyond these categories, the Court has shifted, especially in times of war or during external threats, from the protection of wide-open, robust debate to the punishment of controversial ideas. Second Amendment. The Second Amendment has been controversial; however, it has been addressed by the Court only on rare occasions. It is popularly known for guaranteeing “the right of the people to keep and

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bear arms.” However, in its most significant pronouncement, the Court unanimously held that this right is qualified by the opening phrase which reads: “A well regulated Militia, being necessary to the security of a free State . . . ” In the light of that limitation, most recently the Court declined to hear an appeal from a lower court ruling upholding a municipal ban on hand guns. Third Amendment. The Third Amendment, prohibiting the quartering of soldiers in private houses in times of peace without the consent of the owner, or in times of war, except as prescribed by law, while vitally important when it was written, is no longer the subject of serious Court review. Fourth Amendment. The Fourth Amendment is a catalogue of important personal rights that the Court has sought to interpret by balancing the right of privacy against the legitimate needs of law enforcement. It begins by declaring that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” The very presence of the undefined term “unreasonable” has required the Court to delve into every manner of search and seizure, developing specific rules that police must follow in order to avoid the exclusion of evidence at trial. The Court has repeatedly articulated that the consequence for an illegal search or seizure is suppression of the evidence, thereby creating an incentive for police to scrupulously follow constitutional requirements. The Fourth Amendment also guarantees that “no Warrants shall issue, but upon probable cause.” Here again the Court developed rules to determine whether probable cause exists. In essence, the Court uses a standard of reasonableness based on all of the facts and circumstances surrounding a challenged search or arrest. The Court places itself in the position of the reasonable police officer, relying on particularized suspicion and past experience, but rejecting mere hunches or guesswork. Fifth Amendment. The Fifth Amendment also protects the rights of persons charged with crimes. It prohibits double jeopardy (“subject for the same offence to be twice put in jeopardy of life or limb”), selfincrimination (being “compelled in any criminal case to be a witness against himself”), denial of due process (being “deprived of life, liberty, or property, without due process of law”), and a taking without compensation (having “private property . . . taken for public use without just com-

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pensation”). The Court takes these rights very seriously because they set critical boundaries on what government may do in prosecuting crime. Sixth Amendment. The Sixth Amendment protects the rights of persons charged with criminal violations. Often mischaracterized as mere “technicalities” protecting the “guilty,” Sixth Amendment rights were included in the Bill of Rights because the Founders had lived under a government that frequently arrested, jailed, convicted, and punished individuals without any semblance of fairness or justice. Under the Sixth Amendment, the accused has a “right to a speedy and public trial.” Both elements of this right are very important. The right to a trial is of little value if the accused is kept in jail for several months or years waiting to be tried. Generally speaking, unless the accused waives the time limit, he or she is entitled to go to trial within sixty days after arrest. Likewise, a “public” trial is vital to ensure that an overzealous prosecutor or corrupt judge does not trample on the rights of the accused. Exposing criminal trials to the bright light of public scrutiny allows the general public and the press to observe the proceedings and see for themselves whether the accused is getting a fair trial. The days of the notorious “Star Chamber,” where Englishmen were tried in secret, are a thing of the past. Anyone accused of a crime is also entitled to “an impartial jury” chosen from the geographical area where the crime was committed. The Sixth Amendment guarantees that no one may sit on a jury if he or she has a demonstrable bias or prejudice against the accused, either individually, or because of his or her gender, race, religion, ethnicity, or any other immutable characteristic. Generally, trial judges go to great lengths to question prospective jurors in order to ferret out those who cannot discharge their duties in an impartial manner. Anyone accused of a crime has a right under the Sixth Amendment “to be informed of the nature and cause of the accusation.” Obviously, in order to defend himself, the accused must know what he is being accused of so that he can establish an alibi or find witnesses who may assist in proving his innocence. Only by knowing the charges can the accused’s attorney challenge the sufficiency of the indictment or the validity of the statute or regulation involved. Closely allied to this right is the important right under the Sixth Amendment “to be confronted with the witnesses against him.” An accused is entitled to know who will testify against him or her so that the ac-

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cused and his or her lawyer can prepare adequate cross-examination. From experience, the Founders knew that it is more difficult to lie to another’s face than to do so when the other person is not present. Also, under the Sixth Amendment, an accused has the right “to have compulsory process for obtaining witnesses in his favor.” In other words, the accused has the right to subpoena other persons and require them to come to court to testify and to bring papers and documents. Because the government already has this power, this right ensures a level playing field, where an accused can force reluctant witnesses to present evidence that may exonerate him or her or prove that a witness for the prosecution is lying. Without this right, an accused would be confined to presenting only testimony or documents from persons who voluntarily chose to take the time to come to court. Finally, and perhaps most importantly, the Sixth Amendment guarantees the accused the right “to have Assistance of Counsel for his defense.” No person should face a criminal trial without competent legal counsel at his or her side. Only attorneys trained in the rules of evidence and trial procedures can adequately navigate through the complexities of a criminal trial. Indeed, so vital is the right to legal counsel that the law requires the state to provide a lawyer free of charge for the most serious crimes where the accused cannot afford one. It is worth noting, before leaving the Sixth Amendment, that it contains no reference to the fundamental principle—considered the very foundation of Anglo-Saxon law—that one is innocent until proven guilty. Indeed, the presumption of innocence appears nowhere in the Bill of Rights or the Constitution. Yet, this essential right has repeatedly been recognized by the courts and remains a vital guarantee of American justice. Seventh Amendment. The Seventh Amendment provides that in civil cases in federal courts at common law, where the value in controversy exceeds twenty dollars, “the right of trial by jury shall be preserved.” Essentially, any civil case that entitled a litigant to a jury in 1791 still entitles the litigant to a jury today. Numerous rules (too extensive to be discussed here) have been developed by the courts to determine which civil claims must be tried before a jury and which may not. The Seventh Amendment also guarantees that once a fact has been decided by a jury, it may not be otherwise reexamined in any federal court, except as provided by common law. Here again, because juries were

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viewed by the Founders as a protection against injustice and tyranny, it was important to ensure that once a jury had decided the facts in a case, a judge could not overturn that finding, except in limited circumstances provided in the common law. Eighth Amendment. Further protections for criminal defendants are found in the Eighth Amendment, beginning with the guarantee that “excessive bail shall not be required.” Persons awaiting trial are entitled to be released from jail, provided they post reasonable bail, in cash or property, which will be returned as long as they appear in court where required. The prohibition against excessive bail ensures that an accused is not arbitrarily detained because a judge has set an unreasonably high bail. Closely related is the Eighth Amendment’s prohibition against “excessive fines.” This provision ensures that once convicted, an individual will be fined in proportion to his or her crime or in keeping with guidelines for similar offenses under similar circumstances. The most important provision of the Eighth Amendment states that “cruel and unusual punishment” shall not be inflicted. This prohibition limits the kinds of punishment that can be imposed on those convicted of crimes. It proscribes punishment grossly disproportionate to the severity of a crime, and it imposes substantive limits on what can be made criminal and punished as such. At its most basic level, the prohibition against cruel and unusual punishment was intended to eliminate torture and other barbaric methods of punishment, although as recently as 1963, twenty lashes as part of the sentence for robbery was found not to be in violation of the Eighth Amendment. By far, the most serious—and controversial— application of the prohibition on cruel and unusual punishment came in 1972 when the Court used it to strike down the death penalty (which was then reinstated four years later). The Court found that to the extent the death penalty was administered in an arbitrary and capricious manner, amounting to little more than a lottery, it constituted cruel and unusual punishment in violation of the Eighth Amendment. Generally, in determining whether a punishment is cruel and unusual, the courts consider a variety of factors, including the age of the defendant, the attitude of the defendant, the availability of less severe punishments, contemporary standards of decency, the frequency of imposition, the disparity in punishments for the same or lesser crimes, the propor-

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tionality to the offense, the inhuman shocking or barbarous nature of the punishment, and the totality of the circumstances. Ninth Amendment. One of the least known but most important provisions of the Bill of Rights is the Ninth Amendment, which in simple but meaningful terms states that the “enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” In many ways, these twenty-one words speak volumes about the very nature of American constitutional democracy. As set forth in the Declaration of Independence, people are born with certain inalienable rights. They are not granted their rights by a benevolent government; they are born with those rights and they establish governments in order to preserve and protect them. Thus, people speak of the Bill of Rights as “guaranteeing” constitutional rights, not “creating” them. The Founders firmly believed in those principles. Indeed at first, the drafters of the Constitution did not include a Bill of Rights because they did not contemplate that the Constitution posed any threat to the inalienable rights of all citizens. However, as noted at the outset, many feared that a new and powerful national government would seize all the power it could, thereby jeopardizing personal rights and liberties. However, when James Madison set about to draft the Bill of Rights during the First Congress in 1789, he faced a dilemma: How could he write a comprehensive list of all rights enjoyed by Americans without the risk of leaving some out? The solution was the Ninth Amendment. There, Madison, with utter simplicity, stated that the fact that “certain rights” were enumerated in the Constitution did not mean that “others retained by the people” were denied or disparaged. Consequently, any analysis of constitutional rights cannot stop by merely examining the specific rights; the “certain rights” spelled out in the first eight amendments. One must go further to determine whether there are “others retained by the people.” One of the most profound applications of the Ninth Amendment relates to the right of privacy. Few rights are more important to Americans than the right to be let alone, yet the right to privacy is nowhere mentioned in the Constitution or the Bill of Rights. To some extent, the entire Constitution and Bill of Rights express a right to privacy, that is, a set of limited and enumerated powers delegated to the government, with all other powers and rights held by the people. When the Supreme Court in

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the 1960’s and 1970’s began to address laws restricting contraception and abortion, it found that the right of privacy was rooted in several amendments, including the First, Fourth, Fifth, and Ninth, and what it called the “penumbras” emanating from all of the amendments. Trivialized by certain judges and scholars as a mere “water blot” on the Constitution, the Ninth Amendment, on serious examination, may well reflect the true meaning of the Bill of Rights. Tenth Amendment. Parallel to the Ninth Amendment, the Tenth Amendment rounds out the Bill of Rights. It provides that the “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Thus, as all rights not expressed in the Constitution are retained by the people, all powers not delegated to the federal government are reserved to the individual States or to the people. The Tenth Amendment reemphasizes the limited nature of the national government, underscoring the fact that the government possesses only the powers expressly delineated in the Constitution and no others. The Tenth Amendment is rather obscure on the question of whether the reserved powers belong to the states or to the people. This was surely intentional. Having made his point that the national government was a creature of limited powers, Madison and his colleagues left it to others, including state legislatures, state courts, and the people themselves to sort out their respective relationships when it came to these reserved powers. The Bill of Rights continues to serve the majestic purposes for which it was written more than two hundred years ago. Sometimes with intentional ambiguity, often with passionate eloquence and always with elusive simplicity, the Bill of Rights represents one of the most masterful declarations of individual rights and civil liberties in human history. Yet, as a charter written by people to last the test of time, the Bill of Rights demands continuous study and interpretation to meet the challenges of the next century. Further Reading Don Nardo’s The Bill of Rights (San Diego, Calif.: Greenhaven Press, 1998) provides an overview of the original debate over the need for a bill of rights and explores some of the later debates about rights. Books that examine the origins of the Bill of Rights include Akhil Reed Amar’s The Bill

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of Rights: Creation and Reconstruction (New Haven, Conn.: Yale University Press, 1998), Leonard Levy’s Origins of the Bill of Rights (New Haven, Conn.: Yale University Press, 1999), and The Essential Bill of Rights: Original Arguments and Fundamental Documents (Lanham, Md.: University Press of America, 1998), edited by Gordon Lloyd and Margie Lloyd. Works that examine the legacy of the Bill of Rights include Ellen Alderman and Caroline Kennedy’s In Our Defense: The Bill of Rights in Action (New York: Bard, 1998), The Bill of Rights, the Courts and the Law: The Landmark Cases that Have Shaped American Society (3d ed., Charlottesville, Va.: Virginia Foundation for the Humanities and Public Policy, 1999) by Lynda Butler et al., and Nat Hentoff’s Living the Bill of Rights: How to Be an Authentic American (New York: HarperCollins, 1998). 1791-1991: The Bill of Rights and Beyond by the Commission on the Bicentennial of the United States Constitution, edited by Herbert M. Atherton et al. (Washington, D.C.: Commission on the Bicentennial of the U.S. Constitution, 1990) provides an interesting look back at the Bill of Rights. Stephen F. Rohde

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CASE LAW Description: The entire body of reported cases forming all or part of the law in a particular jurisdiction. Significance: Case law is a defining characteristic of common law legal systems, which use cases to declare rules and principles of law The common law, as developed in England and transplanted to colonial America, was unwritten and based on custom. It had no authoritative statement in a code or statute such as may be found in civil law systems. Legal rules and principles were “found” or “declared” by judges as they decided cases. A judicial decision can be viewed in two parts: first, the decision on who won and the relief granted, and second, the reasoned explanation of the judge in reaching the decision. It is the reasoned explanation which gives rise to a case law system, even if the reasons must be skillfully extracted or inferred from the written decision. Cases, including their explanations, are used to decide future cases. If the facts of a future case are similar to the facts of an old case, the rule or principle of the old case will be used to decide the new case. The old case is called a precedent, and the general procedure whereby courts use old cases to decide new ones is called stare decisis. Over time stare decisis causes a refinement of old rules and principles, adapting them to changes in law and society. In addition, judges will change an old rule or principle if they believe it is wrong, outdated, or otherwise unacceptable. For example, the law of products liability changed in the early twentieth century as judges rejected established legal rules which did not allow consumers to recover damages when injured by defective products except under the most extreme circumstances. Today, the common-law rules allow recovery in most circumstances. Case law is also used to interpret positive law, such as constitutions, statutes, and administrative regulations. This is particularly true if the language of the positive law is open-ended, vague, ambiguous, susceptible to different interpretations, or simply ill-defined. A court which applies the positive law in a particular case will announce a decision accompanied by a reasoned explanation. This explanation will be read by lawyers to discover a legal rule or principle, which will then be applied to future cases arising under the same or a similar positive law. For example, cases arising under the free speech clause of the First Amendment to the United

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States Constitution have created a rich case law defining the boundaries of protected speech. The Constitution does not define what is meant by freedom of speech, so it is up to the courts to give meaning to this concept as they decide individual cases.

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COMMON LAW Description: Law generated from court cases and judicial decisions. Significance: The U.S. Supreme Court is a common-law court in that it generally follows earlier decisions made by judges. Common law, or judge-made law, is generated from a succession of judicial decisions or precedents. In common-law systems, courts are bound by the rule called stare decisis, or “let the precedent stand.” In the United States, common law is distinguished from equity law, which is based on reasoning about what is fair or equitable. It also differs from law based on statutes enacted by legislatures. Common-law systems are contrasted with civil-law systems found on the continent of Europe and elsewhere, which are based on legal codes. Some of these systems are based on the Code civil (“civil law”) drafted in Napoleonic France, derived partially from Roman law. By contrast, the common-law system was developed in England and brought to the American colonies. By 1776 the colonial courts used common law as a matter of course. After the American Revolution, decisions made in U.S. courts added to the body of common law. The Supreme Court is a common-law court. Its decisions are the basis of constitutional law and it generally adheres, except when changing cir-

The Supreme Court Building, Washington, D.C. (Library of Congress)

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cumstances warrant creation of new rules, to stare decisis. When government under the Constitution began in 1789, questions arose as to whether federal courts had jurisdiction over common law cases. The question also arose as to whether federal cases would themselves become a kind of common law in civil or criminal cases. The Court’s decisions regarding these questions had far-reaching consequences. In United States v. Hudson and Goodwin (1812), the Court ruled that no federal court could exercise common-law jurisdiction in criminal cases. It therefore denied the existence of a federal common law of crimes. Whether a federal common law of civil cases exists, however, was another matter. In 1842 in Swift v. Tyson, the Court ruled that there is federal common law in commercial cases. This ruling prevailed for nearly a century; then the Court, departing from stare decisis, reversed itself, ruling in Erie Railroad Co. v. Tompkins (1938) that one of its own decisions—Swift—was unconstitutional. Speaking for the majority, Justice Louis D. Brandeis wrote: “There is no federal common law.” Nevertheless, this ruling did not completely eliminate the idea of federal common law, though today it is limited to specialized subjects. The common-law process of following precedent in making decisions has allowed the federal judiciary to assume the position it holds in the U.S. constitutional plan. When Chief Justice John Marshall rendered the key decision in Marbury v. Madison (1803) that established the federal courts’ power to declare laws void, he was following the common law obligation to apply all relevant law. Because of the force of precedent in common law procedure, the Court’s action in Marbury has reverberated through two centuries of legal tradition, helping to shape the theory and practice of U.S. government. Further Reading Farnsworth, E. Allan. An Introduction to the Legal System of the United States. 3d ed. Dobbs Ferry, N.Y.: Oceana Publications, 1996. Friedman, Lawrence M. A History of American Law. 2d ed. New York: Simon & Schuster, 1985. Plucknett, Theodore F. T. A Concise History of the Common Law. 5th ed. London: Butterworth, 1956. Charles F. Bahmueller

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Description: Process by which general principles of a constitution are applied by officials to individual laws or actions. Significance: The Supreme Court has traditionally had the last word on constitutional interpretation, which can change the powers of government and alter the degree of protection that individuals have from government action. In turn, the permissible scope of interpretation has been determined by what the Court did as it decided cases through its existence. Chief Justice John Marshall noted, in Marbury v. Madison (1803), that the U.S. Constitution requires extensive interpretation. Although it was written and put into effect in the eighteenth century, its creators expected it to last for a long time and assumed that the three branches of the federal government it established would do different things at different times. Although the Constitution purports to control government action, the limits it creates are phrased in broad, general terms and are often vague. Therefore, questions about what each branch is constitutionally allowed to do and the rights of individuals are constantly recurring. The Need for Finality. Of necessity, all three branches of the federal government, as well as state governments, must sometimes interpret the Constitution. A tacit part of the creation of any law is the assertion that the legislature has the power to pass it. Before the Civil War (1861-1865), when government exercised only traditional and well-explored functions, these interpretations were rarely controversial. After the war, however, because of national expansion and the Industrial Revolution, governments began to legislate in new areas, to impose new taxes, and in general to be more energetic. These new actions often raised questions over whether legislatures or the president had the constitutional power to make them. In the twentieth century, large businesses, political pressure groups, and litigious cranks often have incentives (and money) to file lawsuits to challenge interpretations with which they disagree. If there is a question over what the Constitution means and it is properly raised in a federal lawsuit, usually the Supreme Court’s interpretation prevails. As part of its power, the Court can declare that an action of

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another branch of government violates some limit on the power of that branch and is therefore void, or unconstitutional. This power of judicial review is the most important of the Court’s powers. The Court thus serves as the “umpire” of the political game, telling the various elected “players”—Congress, the president, and the states—what they can and cannot do. Through the late 1990’s, the Court declared more than two hundred acts of Congress unconstitutional and invalidated a much larger number of state laws. It is also the guarantor of individual rights, determining how much protection Americans enjoy from government action. The Constitution does not explicitly grant the Court this interpretive finality, and it is by no means clear why the Court should have it. Marshall himself argued that if interpretation is needed, courts are best suited to the task because they have extensive experience interpreting written documents and because they are sworn to give the Constitution priority over ordinary legislation. Scholars have argued that because federal judges have lifetime appointments and are insulated from political pressure, they can interpret the Constitution relatively free of ambition and political bias. Further, because judges are trained in the law, they are more likely to base their interpretations on legal or moral principles than Congress or the president (who are more likely to be swayed by transitory political concerns). Finally, because courts are weaker than Congress or the president, they pose less danger of becoming tyrannical. If nothing else, a final arbiter is needed in a government with a separation of powers, and public opinion seems comfortable with the Court serving as that arbiter. Judicial Restraint. However, the actions of elected presidents and legislators—who presumably try to do what the public wants in order to be reelected—can be set aside by the undemocratic decisions of nonelected judges. For this reason, most Court justices believe that they must restrain themselves to avoid coming into conflict with the elected branches too often. Justice Felix Frankfurter argued for this philosophy of judicial self restraint in numerous texts between 1939 and 1962. He pointed out that courts have no financial or military power and depend on broad support from the public to persuade the other branches to enforce court decisions. If they set aside the democratic decisions of legislatures or presidents too often, this public support will evaporate. Moreover, judges typically have less education in the details of policy and taxation than legislators do.

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Justices who follow the philosophy of restraint try to avoid or at least delay interpreting the Constitution. They raise procedural obstacles to prevent lawsuits from being brought or decide cases on nonconstitutional grounds. If interpretation cannot be avoided, they try to make their interpretations as narrow and case-bound as possible. Above all, they presume that the actions of other branches are valid and do not declare them unconstitutional unless absolutely necessary. Judicial Activism. Justices who follow the philosophy of judicial activism have strong political preferences and believe that they should use constitutional interpretation to write these preferences into law, even if the elected branches disagree. Consequently, they are much more willing to invalidate actions of the other branches. Activists who supported the economic ideology of laissez-faire controlled the Court between 1895 and 1936. Because they believed that business should be allowed to operate as free of government regulation as possible, they interpreted the commerce clause and other parts of the Constitution very narrowly. They struck down many laws designed to protect worker health and safety or to otherwise limit how businesses were allowed to operate. By 1936, neither the states nor the federal government had much economic regulatory power left; consequently, neither was able to deal with the Great Depression. Public opinion turned against the Court, and the activist position was discredited. Judicial restraint justices, who became a majority after 1936, overturned many of the activist economic rulings, leaving it to legislatures to determine how extensively they could regulate the economy. After 1936, most justices have been suspicious of activism. However, that stance enjoyed a resurgence between 1954 and 1969, when activist justices struck down state laws mandating racially segregated public schools and created new court procedures designed to protect the constitutional rights of people accused of crimes. Professor John Hart Ely argued that although elected branches usually can be trusted to operate constitutionally when they deal with economic issues, they can sometimes be perverted by improper election procedures or other structural flaws. If legislatures are malapportioned or voting registration procedures are corrupted so that some people cannot register to vote, the public may not be able to make its wishes known at elections. Majority rule and democracy will not occur. Ely argued that judicial activism is needed to correct these structural flaws when legislatures are unable or unwilling to do so.

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Following Baker v. Carr (1962), the Court ordered legislative reapportionment in many states to ensure that each person’s vote counted equally in choosing legislators. Some justices take compromise positions between activism and restraint. Justice Harlan Fiske Stone argued that courts can defer to legislatures when economics is involved but need to be especially vigilant when legislatures act to limit freedom of speech, press, or religion because these rights are fragile and easily lost. The Court must, in his words, give these political rights a preferred position. In the 1970’s the Court used Stone’s view as the basis for the strict scrutiny principle: Unlike economic legislation, laws that limit basic rights or that operate to harm politically weak minorities are presumed to be invalid unless they are indispensable to achieving some extremely important government goal. Through the 1990’s, the Court continued to construe legislative power very narrowly in such cases. Interpretivism. The dispute between judicial activists and restraintists is largely a dispute about when, or how often, the Court should interpret the Constitution. Justices are also divided over how the job should be done. Supreme Court justices have always assumed that they should function as a court of law, by applying principles of interpretation to individual cases in an objective and disinterested way and by treating like cases alike. However, the Constitution does not contain principles for its own interpretation. These have to be discovered elsewhere, and justices and scholars disagree over the method. Interpretivists, sometimes called originalists, believe that the Constitution should be interpreted as intended by the people who framed and ratified the Constitution—the Founders. Interpretivists typically believe that there are eternal political principles, such as the belief that power corrupts, which must be controlled if government is to operate fairly. The wise Framers knew these principles, embodied them in the Constitution, and expected these principles to control all constitutional interpretation. Thus, interpretivists claim that they are following the path marked out by the Framers. In addition, as Justice Clarence Thomas and many others argued, the legitimacy of the Constitution depends on its having been accepted by the people in the ratification procedure in 1789. In that “constitutionmaking moment,” a contract was created between the rulers and the ruled. The Constitution, which is the written part of that contract, se-

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cured the consent of the governed for the limited government it set up. However, the people accepted the Constitution as the Framers expected it to be interpreted. The interpretations of the Framers. the unwritten part of the agreement, are thus equally binding. If the Court interprets the Constitution in some other way, governments may come to exercise more powers than the people granted. When controversies arise about what the Constitution means, interpretivists try to determine what its Framers intended. Most try to learn about the values of the Founders by studying their records and papers. Others seek principles in the records of American and British commonlaw courts because courts discuss and apply the political values of their times. Still others study traditions and customs. For example, the practice of beginning each session of Congress with a prayer, which has existed since the first Congress wrote the First Amendment in 1790, has been cited as proof that the Framers did not intend that amendment to forbid all ceremonial prayer in government proceedings. Finally, others, called textualists, try to discover principles embedded in the language of the Constitution by studying how its words and phrases were used in the eighteenth century. Sometimes the interpretive intent of the Framers can easily be discovered. For example, it is clear that the Framers did not intend the prohibition on cruel and unusual punishments to forbid the death penalty as such because they continued to use it. However, many parts of the Constitution remain stubbornly unclear. Sometimes the intent of the Framers cannot be discovered, and sometimes, they disagreed with one another. In more troubling cases, some values of the Founders, including their toleration of slavery, have become outdated or offensive. Professor Ronald Dworkin, for example, has observed that although the Founders overwhelmingly accepted racially segregated schools and many other governmental inequities, any constitutional interpretation that permitted these inequities to exist today would be overwhelmingly rejected by most Americans. Noninterpretivism. For these reasons, noninterpretivists argue that the intent of the Founders should be given little weight in contemporary constitutional interpretation. Most noninterpretivists either deny that there are political principles of eternal validity or else believe that the few such principles that do exist are of such generality that they offer little guidance to dealing with concrete problems. As Chief Justice Earl Warren observed, the rule to “treat people equally except in exceptional cases” does

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not help a justice trying to decide whether segregated schools should constitute such an exception. Nor, as Justice William J. Brennan, Jr., has noted, does the Constitution depend for its binding effect on the consent of people in 1789. Instead, he argues, the people must constantly accept the Constitution as it exists today. They do so tacitly, by obeying its requirements. They will continue to do so as long as the Constitution meets their expectations about what it should be like. If there is any conflict between what the law says the Constitution is and what the people want it to be at any moment, then the job of the Court is to sit as a “permanent constitutional convention” and, by interpretation, to revise the Constitution to fit the public expectations. This is what the Court did in Brown v. Board of Education (1954), when it struck down the segregated schools that had long been legally accepted. Significantly, in Brown, the Court ignored the history urged on it by interpretivists, saying only that it could not “turn back the clock” to the Civil War or the colonial period. Instead, Chief Justice Warren emphasized sociology, stressing the importance of contemporary education to the ability of individuals to achieve their goals and function as citizens. As compared with interpretivists, noninterpretivists assume that change is more rapid and cuts deeper into political values and beliefs. Though they insist that the values of contemporary citizens should be given priority, they offer little guidance on how to discover these values. Nor do they explain how to tell the difference between basic principles and values, which should govern views on many political issues over time, and short-term political principles specific to an issue. Finally, noninterpretivists do not explain the source of the power they claim to continually revise the Constitution. Though that document contains procedures for formal amendment, it nowhere gives the Court the right to serve as a “permanent amending convention.” Other Views. In an influential 1959 article, Professor Herbert Wechsler argued that any constitutional interpretation, to be fair, must be made on the basis of a neutral principle, a rule capable of being applied uniformly to all similar cases without creating an advantage for any particular political force. Neutral principles may be those of the Founders or may be discovered later. His examples are derived from moral principles and relate to controversies of the period: A state cannot escape limits on public action by transferring some government function (such as holding primary elections) to private control, and racial segregation (a denial of equality

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per se) may constitute a denial of freedom of association. Presumably, the neutrality of such principles can be tested by philosophers who study critical cases. Neutrality has long been an important consideration in constitutional law. Therefore, the holding that the First Amendment guarantees the right to hold peaceable public parades cannot be considered fair unless it is applied impartially to Republicans and Democrats and civil rights activists and members of the Ku Klux Klan. Professor Wechsler suggests that interpretive principles can be similarly neutral and should not be used by the Court unless they are. The neutral principles approach seems intuitively fair. In legal proceedings, neutrality seems achievable. Thus, courts insist that laws be knowable in advance, for example, and that lawyers for both sides in a lawsuit have adequate time to prepare their cases. However, it may not be possible to find nontrivial principles that are truly neutral. Wechsler suggests that equality may be such a principle, but others have disagreed. Most of the individual rights guaranteed by the Constitution are not meant to be absolute. The public is protected, for example, against only “unreasonable” searches and seizures; the privilege of habeas corpus must not be suspended “unless the public safety requires.” However, some parts of the Constitution are phrased to suggest that they allow no exceptions. For these, absolutists argue that the Constitution should always be interpreted to forbid government action. For example, absolutists interpret the First Amendment statement that Congress shall make no law abridging freedom of speech as meaning that Congress cannot regulate sedition, the utterance of threats, or the publishing of obscene literature. Absolutists make it unnecessary to draw precise legal lines between things that may be vague and subjective. If they prevailed, it would be unnecessary, for example, for justices to distinguish between obscene material, which legislatures could ban, and nonobscene pornography, which is protected under the First Amendment. However, this would require the acceptance of extremes of behavior offensive to both Founders and contemporary Americans. In practice, absolutists tend to allow exceptions by casuistry. Uttering a threat, for example, is said to be a form of action, not speech. The publication of obscene material is seen as an incitement of violence against women, rather than as freedom of the press. Finally, in cases in which rights conflict, the Court has created legal rules, or doctrines, for handling the conflict. Sometimes rights are placed in a hierarchy. Those rights of criminally accused persons that are neces-

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sary for courts to hold fair criminal trials, for example, have been preferred to individual rights to speak or publish. The latter, in turn, have been preferred to the rights of political leaders and bureaucrats to act with “administrative efficiency.” In other cases, rights have been balanced against one another. In United States v. Nixon (1974), for example, in which the president unsuccessfully sought to keep secret audiotapes that had been requested by former aides who needed them to defend themselves against criminal charges, the Court balanced the need of the president to keep information confidential against the constitutional rights of the defendants in a criminal court. Further Reading Lee Epstein and Jack Knight have described how the Court goes about its work in The Choices Justices Make (Washington, D.C.: Congressional Quarterly, 1998). The most comprehensive presentation of the various approaches to interpretation is Craig Ducat, Modes of Constitutional Interpretation (St. Paul, Minn.: West Publishing, 1978). Activism and restraint are examined in Supreme Court Activism and Restraint (Lexington, Mass.: Lexington Books, 1982), edited by Stephen C. Halpern and Charles M. Lamb, and Christopher Wolfe’s Judicial Activism: Bulwark of Liberty or Precarious Security? (rev. ed., Lanham, Md.: Rowman & Littlefield, 1997). Leif Carter has written an accessible introduction to the problem of original intent, Contemporary Constitutional Lawmaking (New York: Pergamon, 1986). Judge Robert H. Bork argues for one form of interpretivism in The Tempting of America (New York: Simon & Schuster, 1990), and scholar Michael Perry examines noninterpretivism in The Constitution, the Courts, and Human Rights (New Haven, Conn.: Yale University Press, 1982) and interpretivism in The Constitution in the Courts: Law or Politics? (New York: Oxford University Press, 1994). Herbert Wechsler’s views are best described in his own article, “Toward Neutral Principles of Constitutional Law,” Harvard Law Review 73 (1959). Mark Tushnet demonstrates the difficulty of applying such an approach in practice in “Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles,” Harvard Law Review 96 (1983): 781. Finally, the Court’s traditional control of interpretation has not gone unchallenged. Tushnet takes a critical perspective in Taking the Constitution Away from the Courts (Princeton, N.J.: Princeton University Press, 1999). Paul Lermack

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CONSTITUTIONAL LAW Description: Dynamic body of law that defines and limits the powers of government and sets out its organizational structure. Significance: As the fundamental law contained in the U.S. Constitution and in Supreme Court decisions interpreting that document, constitutional law blends legal decisions with elements of politics and political theory, history, economics, public policy, philosophy, and ethics. A resilient document, the U.S. Constitution has endured with only twentyseven amendments since its formulation in 1787. Its sweeping language and generalities allow change and interpretation in the face of altered circumstances, from the changing human condition to the changing composition of the Supreme Court. The Constitution contains few rules and is not self-explanatory. That lack of specificity was intentional. The Constitution’s original Framers outlined their general intent to create the fundamentals of a national government, prescribing how it should operate and limiting its scope of power. The ongoing interpretative process engaged in by the Court allows the provisions of the Constitution to change and adapt over time. The Court refers to the original Constitution because, by doing so, it can bring resolution of the new and often divisive issues of each generation. The genius of constitutionalism, therefore, lies in the opportunities provided in the document for change and continuity, the method of judicial interpretation, and the overall skill and sensitivity of the justices. The fact that the justices are lifetime appointees frees them from concerns about approval by political leaders and voters and permits concentration on the issues. Constitutional Decision Making. Virtually all cases going before the Court involve seeking review of a decision by a federal court of appeals or a state supreme court. As the final authority on federal matters and questions dealing with the Constitution and treaties, the Court exercises appellate jurisdiction (appeals) and functions as a trial court (original jurisdiction) only in certain limited situations involving ambassadors or where a state is a party. Most of the cases reach the Court for review by means of a writ of certiorari, or through the exercise of the Court’s discretion. This means that the Court has almost complete control of its docket. Of the 7,000 petitions for review annually, only 2 percent are granted. The

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Court issues an average of 110 opinions per year, permitting a selected group of policy issues to be addressed. The Court is shrouded in secrecy, assuming some of the awe and mystery of the document it interprets. Some have criticized the Court for remaining in an “ivory tower” far removed from “we the people” set out in the preamble to the Constitution. Decisions to grant or deny review are made in secret conferences attended only by the nine justices with no support staff. A traditional unwritten rule specifies that a case is accepted for review if four justices feel that it merits the Court’s attention (rule of four) and that it would serve the interests of justice. The Court does not have to explain its refusal. When the Court decides to hear a case, the clerk schedules oral argument during which the justices may interrupt and ask questions of the attorneys to clarify, debate, or explain the written briefs. Cases are discussed in secret conferences following oral argument. It takes a majority vote to decide a case. Following the conference and ensuing discussion, an opinion or reasoned argument explaining the legal issues in the case and the precedents on which the opinion is based must be drafted. The manner in which a majority opinion is written can have a great impact on Americans. That impact depends in part on who writes the opinion and how it is written, and also on the extent of support or dissent by the remaining justices. A 5-4 plurality opinion does not demonstrate the firm conviction of the Court that is present in a unanimous or 8-1 decision. E. Robert Seaver, clerk of the Supreme Court in 1970. (Library of Congress) Any justice can write a

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separate opinion. If justices agree with the majority’s decision but disagree with its reasoning, they may write a concurring opinion. If they disagree with both the result and reasoning contained in the majority opinion, they may write a dissenting opinion or simply go on the record as dissenting without an opinion. More than one justice can join in a concurring or dissenting opinion. Decision making or opinion writing is a painstaking and laborious process. The time involved varies from one justice to another depending on the complexity of the issues in the case. The actual reporting of decisions has changed from the days in which members of the Court read long opinions aloud, sometimes taking days to do so. When Charles Evans Hughes became chief justice in 1930, he encouraged the delivery of summaries of opinions. That practice has continued, and the justice writing the majority opinion delivers the summary. Dissenting justices deliver their own opinions. Computerization and Lexis and Westlaw legal databases have made newly decided opinions accessible to all within hours of their release. The Highest Court. Decisions of the Court are final because there is no higher court to which to appeal. Its interpretation of statutes can be reversed only by congressional legislation, and its constitutional rulings overturned only by constitutional amendment. Absent these remedies, all courts are obliged to follow the Supreme Court in matters of federal law. In its decisions, the Court attempts to adhere to precedent, or stare decisis, and in that capacity serves as final authority in constitutional matters, thereby providing a uniform interpretation of the law, historical continuity, stability, and predictability. Just as the Court sets its own agenda and controls what it hears, accepting or rejecting cases according to individual and collective goals such as avoiding troublesome issues, resolving legal conflicts, and establishing policies favored by the justices, Court decisions are group products shaped by the law, the Court and the country’s environment, and the personal value systems of and interactions among the justices. The power to define the Constitution makes the Court unique among government institutions. Through the exercise of its constitutional role together with the rule of law, the Court has wielded far-reaching power. The proper functioning of federalism and the scope of the rights of the individual depend on the actions of the Court, whose words mark the boundaries of the branches and departments of government.

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The justices function as “nine little law firms,” autonomous but working as a collegial body to decide a case. In important cases, the opinions issued by the Court are often negotiated among the members, the result of a cooperative collaboration in which the end product is the joint work of all rather than the product of the named author alone. Self-Imposed Limitations. The Court imposes certain limitations or barriers before accepting a case for review. It poses certain threshold questions to deal with tactical issues that must be resolved before the Court reaches the substance of the controversy. Referred to as “judicial restraint,” if these elements are not overcome, the Court will not exercise jurisdiction over a case. Article III, section 2, of the Constitution requires that there exist an ongoing “case or controversy” at all stages of the proceedings, including appeal. As interpreted by the Court, these words limit the power of federal courts to resolving disputes between adversaries whose rights are truly in collision. Often called “justiciability,” the requirement provides concreteness when a question is precisely framed. The case, therefore, must present a live dispute. Precluded are advisory opinions, or giving advice on abstract or hypothetical situations, as the Court ruled in Muskrat v. United States (1911), and moot cases, or those that have already been resolved, settled, or feigned, or those in which circumstances or time have removed the dispute or conflict because there is nothing for a court to decide, as it ruled in DeFunis v. Odegaard (1974). Several narrow exceptions to the mootness rule exist where conduct is of short duration but capable of repetition such as election disputes or abortion cases such as Roe v. Wade and its companion case Doe v. Bolton (1973). In Baker v. Carr (1962), the Court determined that political questions or those matters more properly applicable to another branch of government will not be accepted, nor will friendly or collusive suits and test cases. Standing to sue requires that the litigants have a personal stake in the outcome of the case, having suffered an actual injury, in order to assure concrete adverseness. Ripeness requires the issues in the case to be clearly delineated and sharply outlined, not premature, in flux, or abstract. Moreover, the Court will not engage in speculation, contingencies, or predictions or issue extrajudicial advice. Judicial Review. Courts participate in the development of constitutional law through judicial review. In the landmark case Marbury v. Madison

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(1803), considered to be the point at which constitutional law begins, the Court held that Article III empowers courts to review government actions and invalidate those found to be repugnant to the Constitution by declaring them unconstitutional. The supremacy clause of Article IV states that no provision of state law and no legislative enactment may conflict with the national Constitution, which is the supreme law of the land. The Framers of the Constitution decentralized control through federalism, considered one of the most important contributions to government. Federalism is a dual system in which powers are divided between national and state authorities. Bill of Rights. Protecting the fundamental rights of individuals was considered of the utmost importance. The Framers believed that explicit enumeration of those rights would make the rights more secure. In order to achieve ratification of the main body of the Constitution, therefore, in 1791 the Framers appended to it a Bill of Rights, consisting of the first ten amendments of the present document. While the body of the main Constitution concerns government, the Bill of Rights represents the popular perception of constitutional guarantees. Basic to American identity is the First Amendment and its central guarantees of freedom of speech, press, religion, assembly, and right to petition for redress of grievances. Despite language to the contrary, the rights contained in the Bill of Rights are not absolute. In the speech area, for example, certain categories of expression can be regulated; others are not protected at all. “Pure” speech that creates no danger to the public is protected. However, if speech advocates an imminent lawless action that presents a “clear and present danger,” the speech loses its protection, as the Court ruled in Schenck v. United States (1919). In Texas v. Johnson (1989), the Court found that symbolic speech or use of actions as a substitute for words is generally protected, such as flag burning as a controversial but valid expression of political views. Obscenity or pornography, defamatory communications (libel and slander), and “fighting words” that provoke an immediate breach of the peace do not receive First Amendment protection. Some rights that Americans consider basic to their fundamental freedoms are not mentioned specifically in the Constitution. Among these are the right of personal privacy, which protects the individual from state interference. The Court has struggled with the constitutional foundation of the right, suggesting various sources: the due process guarantee of the

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Fourteenth Amendment and the penumbras or emanations from the interests protected by the First, Third, Fourth, Fifth, and Ninth Amendments (Griswold v. Connecticut, 1965). Further Reading Two well-written works containing detailed treatment with case references and quotations are Joan Biskupic and Elder Witt’s The Supreme Court and the Powers of the American Government (Washington, D.C.: Congressional Quarterly, 1997) and The Supreme Court at Work (2d ed., Washington, D.C.: Congressional Quarterly, 1997), with biographical sketches of the justices and illustrations. Lawrence Baum’s The Supreme Court (5th ed., Washington, D.C.: Congressional Quarterly, 1995) examines the role of the Court, the justices, the decision-making process, factors that influence the Court, activism in policy making, and the Court’s significance. Organized by case themes, Decision: How the Supreme Court Decides Cases (New York: Oxford University Press, 1996) by Bernard Schwartz offers a behind-the-scenes look at how the Court decides cases. Archibald Cox’s The Court and the Constitution (Boston: Houghton Mifflin, 1987) is a readable yet scholarly account of how the Court shaped constitutional law. Peter G. Renstrom’s Constitutional Law and Young Adults (Santa Barbara, Calif.: ABC-CLIO, 1992) is a guide to the Constitution, the court system, and key provisions of the Bill of Rights and Fourteenth Amendment with case references. It is comprehensive in scope and comprehensible to the general reader. David P. Currie’s The Constitution of the United States: A Primer for the People (Chicago: University of Chicago Press, 1988) contains an overview of the document and the major concepts contained in it in language intended for the general reader. Marcia J. Weiss

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CONSTITUTION, U.S. Description: The fundamental document establishing the national government of the United States of America. (The full text of the Constitution appears in this volume beginning on page 379.) Significance: This document describes the nature and limits of political power within the national government; it also describes how the different branches of government will be structured The Constitution of the United States is an extraordinary document, both theoretically and historically. Knowing how this document was developed is important to understanding both its purpose and its success. Development. The Constitution of the United States was not the first— and some would argue that it is not the most important—of the founding American documents. The Constitution was developed eleven years after the approval of the Declaration of Independence. After declaring and then winning independence from Great Britain, the new nation spent a number of years governed by the Articles of Confederation. The Articles created a loose federation of states which eventually proved too weak to serve the needs of the young nation. In 1787 delegates from twelve of the states (all but Rhode Island) met to discuss ways of revising the Articles of Confederation to create a more adequate government. The Constitutional Convention of 1787 quickly decided that the basic premise behind the Articles of Confederation rendered them inadequate for governing the nation. The Convention began discussing a far more centralized form of government than was possible under the Articles of Confederation. James Madison and Edmund Randolph, two Virginia delegates who had anticipated this possibility, arrived at the Convention with the rough outlines of a totally new form of government. After considerable debate and numerous compromises, the Convention approved the Constitution of the United States and sent it to the states for their ratification. After further debate and much political maneuvering, the Constitution was eventually ratified by all thirteen states. Basic Principles of the Constitution. One of the most unique aspects of the Constitution was that it was (and is) firmly based on a clear set of theoretical principles. To describe the Constitution as a document of the En-

A portion of the U.S. Constitution printed in the Pennsylvania Packet two days after the document was sent to the states for ratification. (Library of Congress)

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lightenment—an eighteenth century movement in European thought that celebrated the capacity of reason to solve human problems—would be to tell the truth but not necessarily the whole truth. Alexander Hamilton, a delegate to the Constitutional Convention from New York, claimed that the U.S. Constitution reflected what he described as a “new science of politics.” According to Hamilton, this new science was based on principles either unknown to or not fully understood by previous generations. It is generally acknowledged that the most fundamental principles of the Constitution are separation of powers, federalism, and republicanism. Each of these principles is critical to a clear understanding of the American system of government, but each was developed because of the commitment of the Framers of the Constitution to a prior principle—the principle of limited governmental power. A government founded on the principle of limited powers must develop safeguards to ensure that the people who wield the powers of government do not go beyond the limits. Within the American constitutional system this is accomplished by the three principles cited above. Separation of Powers. Separation of powers was a political principle advocated by English philosopher John Locke and French philosopher Baron de Montesquieu. The Constitution of the United States was the first national political document to apply this concept of government. Distinct governmental powers had long been recognized, but the Constitution of the United States was the first to place these powers in separate branches of government. The first three articles of the Constitution describe the location and authority of the legislative, executive, and judicial powers of government. Article I, section 1 of the Constitution begins by stating: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” In addition to establishing the location of the legislative powers, this statement declares that those powers will be shared by two separate legislative chambers. Bicameralism (the term used to describe a two-chambered legislature) permits the two legislative chambers to provide internal checks on each other. The notes taken at the Constitutional Convention reveal that disagreements over how the representatives to Congress would be apportioned and selected were the most difficult for the delegates to settle. At one point, delegates threatened to withdraw from the convention over this is-

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sue. The solution to this dispute produced one legislative chamber that represents states equally (the Senate) and another that represents states according to their population (the House of Representatives). The Senate consists of two senators from each state in the Union. Senators are elected for six-year terms; the long term was intended to give them relative freedom from the passing whims of the electorate. One of the rationales for such long terms was that the Senate would be freer to speak to the long-term needs of the nation. The Constitution requires staggered terms for the senators so that a third of the Senate seats are up for election every two years. This requirement provides a degree of stability and continuity in the national government. In contrast, the members of the House of Representatives hold twoyear terms. These shorter terms keep House members in much closer contact with the American voters. By requiring that House members seek reelection every two years, the Constitution provides the voting public with regular access to national lawmakers. Legislators who desire new laws or want to alter old ones must be able to persuade a majority of the lawmakers in both legislative chambers of Congress. By design, this process was not intended to be quick or easy. The legislature was meant to be a deliberative group that carefully examines all proposed laws. In a bicameral legislature, proposals that might be rushed through one chamber may be examined carefully in the second chamber. The Framers of the Constitution believed that it was more important that laws be carefully and thoughtfully examined than that they be approved quickly. Article II, section 1 of the Constitution places the executive powers of the United States government in the hands of “a President.” The Constitutional Convention had considerable difficulties developing the executive branch of government. In part, this was attributable to their basic suspicion of executive power. They also realized, however, that one of the greatest shortcomings of the Articles of Confederation was the absence of a clearly defined executive branch. The first question was whether the executive authority should be placed in a single executive or multiple executives. The second question, and one of the last to be settled at the Convention, concerned the method for selecting the executive. After much debate, the Convention settled on a single executive. In the words of Alexander Hamilton, only a single executive would provide the “unity and dispatch” modern governments required. This sentiment prevailed, and the Convention then had to determine how “the President

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of the United States” would be selected. The electoral college was the method upon which they eventually settled. This system utilizes the states as electoral units and follows the representative principle devised for Congress to distribute the votes among the states. The president’s basic responsibilities are to see that national laws are faithfully executed, to serve as the commander in chief of the national armed forces, to appoint the executive officers of the different federal agencies, and to recommend judges to serve on the Supreme Court and the lesser courts established by Congress. In addition to these responsibilities, the president has a limited veto over the acts of Congress. Article III of the Constitution describes the judicial branch of government. More specifically, it establishes the Supreme Court and any additional courts Congress may establish. One of the more unusual aspects of the Constitution is its establishment of an independent judiciary. Judges receive lifelong appointments, so they are as free from political influences as is humanly possible. The only qualification to this independence is that Congress has the power to impeach and remove judges if they behave in a manner that would warrant such removal. In this respect, judges are subjected to the same kind of scrutiny as are members of the executive branch of government. One aspect of the separation of powers that is often given particular consideration is the concept of checks and balances. The Constitution provides that each of the three branches of government has certain “checks” on its power that are under the control of another branch. Congress, for example, controls the budget of the president and the judiciary. The president, on the other hand, can veto acts of Congress (Congress, in turn, can override a veto with a two-thirds vote in both houses). The president also appoints justices to the Supreme Court (with congressional approval). Finally, the Supreme Court can rule that the laws of Congress or the actions of the president are unconstitutional. Federalism. This aspect of the Constitution is one of the more ingenious creations to grow out of the Constitutional Convention. Historically, national governments had been either unitary governments or confederal governments. Unitary governments place all power in the hands of a centralized authority. The British government is an example of such a system. In a confederal system, the ultimate power is decentralized among member states. Some responsibility may be given over to a centralized authority, but the real power remains with the decentralized units of gov-

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ernment. This was the case under the Articles of Confederation. The federal system established by the Constitution was unique in that it created a governmental system in which the real powers of the political system were truly divided between the centralized and decentralized units of government. The distribution of powers between the states and the national government has created considerable political tensions during the course of American history. It is important to realize that these tensions were largely intended by the Framers. Federalism, like the separation of powers, was built into the constitutional system as a check on governmental powers. Article VI establishes the Constitution, acts of Congress, and treaties as the “supreme Law of the Land,” but the Tenth Amendment to the Constitution declares the limits of that supremacy: The states and the people possess all powers not delegated to the United States by the Constitution.

John Jay, one of the authors of the Federalist papers, later became the first chief justice of the United States. (Collection of the Supreme Court of the United States)

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Republicanism. Article IV of the Constitution guarantees that every state in the union will have a republican form of government. The Federalist Papers, a collection of essays written by Alexander Hamilton, James Madison, and John Jay in 1787 and 1788, explain why a republican system of government was considered preferable to a democratic system. The tenth essay of this collection provides a detailed comparison of these two popular systems of government. The first advantage of republicanism is that governmental authority is delegated to a small group of citizens. The second is that republican governments can cover a much larger geographical area than a direct democracy can. When a smaller group has the responsibility of representing a larger group, each of the representatives must speak for a variety of interests. By learning the interests and needs of a diverse number of groups, representatives approach governmental decision making with a broader perspective than they would if they were simply advocating their own interests and needs. Public opinion is thereby filtered through a select group of representatives who must keep the many needs of their district in mind. The advantage of a large geographical area is that it produces a great diversity of interests. This diversity decreases the likelihood that a single interest will constitute a majority on any given issue. For example, while chicken processors may hold a majority interest in Arkansas or oil producers may be a major political force in Texas, neither of these groups can dominate a large geographical area such as the entire United States. Together, these factors increase the likelihood that governmental decisions will serve the general interests of the nation instead of one or a few dominant groups. The existence of these basic principles within the Constitution creates a significant barrier to government guided by passion as opposed to government guided by reason. The many checks within the system provide numerous obstacles to laws that are not in the interest of a fairly wide and diverse group of citizens. The system also places a substantial burden of proof on those who want to change existing laws or develop new laws. The cumbersome nature of the political process exposes any legislative initiative to a series of examinations before a number of different bodies. Amendments. The Constitution has been a remarkably stable political document. The method described in Article V for amending the Constitution has not been utilized very often. By 1995 there were only twentyseven amendments to the Constitution. The first ten amendments,

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known as the Bill of Rights, were passed within three years of the Constitution’s ratification. Three amendments (thirteen through fifteen) were passed at the end of the Civil War to make the institution of slavery unconstitutional and to extend certain citizenship rights to African Americans liberated by the Civil War. One of these, the Fourteenth Amendment, through its requirements of “due process” and “equal protection of the laws,” has been instrumental in expanding basic civil rights to a number of other groups as well. The Seventeenth Amendment instituted the direct election of senators, the Twenty-second Amendment limited presidents to two terms, and the Twenty-fifth Amendment provided for the transfer of power in cases of presidential disability. A number of amendments (fifteen, nineteen, twenty-three, twenty-four, and twenty-six) have expanded the electorate. One of the reasons often cited for the Constitution not having gathered more amendments through the years is the role the federal courts have played in determining questions of constitutionality. This process, known as judicial review, has permitted the courts to clarify and fine tune aspects of the Constitution. At times the courts have been accused of taking undue advantage of this authority. President Woodrow Wilson, for example, once referred to the Supreme Court as an ongoing constitutional convention. The Constitution has proved to be one of the most durable political documents of all time. One of the key reasons for this durability is the document’s brevity. The Framers had a sense of what a constitution needed to specify and what it did not. Leaving many details unsettled, the Framers recognized that statutory laws, administrative law, and precedents could handle the more specific and transient details of government. Further Reading The most important work describing the Constitution is the collection of essays written by Alexander Hamilton, James Madison, and John Jay, The Federalist Papers. The Clinton Rossiter edition (New York: New American Library, 1961) is probably the most readily available. One of the most thorough volumes is edited by the late Allan Bloom, Confronting the Constitution (Washington, D.C.: AEI Press, 1990). A clearly written and thoughtful examination of some of the theoretical aspects of the Constitution can be found in Harvey C. Mansfield’s America’s Constitutional Soul (Baltimore:

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Johns Hopkins University Press, 1991). The most readable constitutional history available is probably Alfred H. Kelly, Winfred A. Harbison, and Herman Belz’s The American Constitution: Its Origin and Development (6th ed. New York: W. W. Norton, 1983). For a well-reasoned and well-written intellectual history, see Forrest McDonald’s Novus Ordo Seclorum: The Intellectual Origins of the Constitution (Lawrence: University Press of Kansas, 1979). Donald V. Weatherman

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DECLARATION OF INDEPENDENCE Description: The document in which a group of colonial American leaders declared themselves independent of Great Britain and King George III (The full text of the Declaration of Independence appears in this volume beginning on page 375.) Significance: The Declaration of Independence was the legal basis for the formation of the United States; it has significantly influenced American political thought, as well as that of other emerging nations, through the years When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

So begins one of the most famous documents in political history. The American Declaration of Independence has had broad and sweeping historical effects. Believing in self-government, the signers of the declaration also believed they were providing the legal basis for organizing a new government—provided that the new republic, with the help of its allies, could win control of the field in battle. The endeavor marked the origins of what eventually became the most powerful nation in the world. In the twentieth century the United States had great significance in world history, and the origins of that historical effect can be traced back to Philadelphia, Pennsylvania, and July 4, 1776. The Declaration and the Revolution. Many nations have found in the Declaration of Independence inspiration and ideological support for their own revolutions. Some of the wording and many of the ideas have found their way into later, more modern declarations of independence in various parts of the world. The American Revolution was not really a revolution in the modern sense of the word, but was a separatist war seeking independence rather than seeking to overthrow an existing government. In that sense the war could more accurately be called the American war for independence from Great Britain.

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Currier and Ives print of the signing of the Declaration of Independence on July 4, 1776. (Library of Congress)

The colonists claimed they were fighting a defensive war for the preservation of English liberties in the American colonies. There was indeed a continuity with the past, and many of the prewar political leaders in America continued as leaders in the new republic, but major changes also took place, including the writing of the Constitution of the United States in 1787. English customs, traditions, and the continuity of the English common law in the United States helped to preserve stability and minimize the upheaval of such momentous change. In several states the colonial charters were kept largely intact, changing only terms to meet the new political realities. The Declaration of Independence was not entered into lightly, as the preamble and first paragraph explicitly state: “Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes.” The Americans, though, were convinced that there was a design on the part of King George III of Great Britain to “reduce” the American colonies to rule under “absolute Despotism.” For that reason they decided to declare independence and risk their lives, fortunes, and “sacred Honor” in the pursuit of freedom and independence. They stood on principle and they stood together, for as Benjamin Franklin so aptly put it, “We must all hang together or surely we will all hang sepa-

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rately.” Obviously the British did not consider the Declaration of Independence to be a legal document. The risks were great and so was the courage of the patriots. In the end the British had no choice but reluctantly to acknowledge American Independence as declared. The Americans declared that they were fighting for certain things besides independence. Thomas Jefferson, the author of the Declaration of Independence, penned the views of the assembled Continental Congress. His famous words expressed their views on the purpose for, and basis of, government: We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed; That whenever any Form of Government becomes destructive of these ends it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

“Unalienable Rights.” All Americans (indeed all people, according to the implication of these words) have “certain unalienable Rights.” Where did those rights come from? Certainly not from the state—or else the state could change and take them away, and they would not be “unalienable.” They came from “their Creator,” from “the Laws of nature and of Nature’s God.” The Declaration of Independence then acknowledges a higher law, or natural law, to which government and human laws must conform. Jefferson was a leader of the American Enlightenment and so used “natural law” terminology. Many of the other leaders were orthodox Christians and so used biblical terminology. John Dickinson, a leader of the Stamp Act Congress, for example, wrote that “Our liberties do not come from charters; for these are only the declaration of preexisting rights. They do not depend on parchments or seals; but come from the King of Kings and Lord of all the earth.” Enlightenment or traditional Christian, both groups agreed that Americans are born with certain Godgiven rights, including life and liberty. The concept of inalienable rights for the individual presupposes limitations on the power of the state, and that idea is the basic assumption in-

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volved in writing a constitution. During the American Revolution the main constitutional authority in the United States rested in the thirteen state constitutions. The Continental Congress acted as the extralegal representative assembly that attempted to hold the states together and to conduct the war and diplomatic relations. It was not until 1781 that the first “constitution” of the United States was adopted, the Articles of Confederation. Both the Continental Congress and the Confederation Congress lacked sufficient authority to act as a central government, however, and in due time the United States Constitution was written, adopted, and put into effect in 1789. Thomas Jefferson did not claim originality in writing the Declaration. “All American whigs [Patriots],” he wrote, “thought alike on these subjects.” He wrote the declaration “to place before mankind the common sense of the subject, in terms so plain and firm as to command their assent, and to justify ourselves in the independent stand we are compelled to take. . . . It was intended to be an expression of the American mind, and to give to that expression the proper tone and spirit called for by the occasion. All its authority rests then on the harmonizing sentiments of the day, whether expressed in conversation, in letters, printed essays, or in the elementary books of public right, as Aristotle, Cicero, Locke, etc.” The Declaration of Independence is not a constitution. It was partially designed to attract international support to the American cause. Yet if its basic presuppositions are correct and “the people” have a right to change their form of government, then the declaration is extremely important as a representaThomas Jefferson, principal author of the tive expression of the colDeclaration of Independence. (White House Historical Society) lective will of the people.

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Further Reading A good starting point for further reading on the Declaration of Independence is a collection of essays on the subject (and related matters), Earl Latham’s The Declaration of Independence and the Constitution (3d ed. Lexington, Mass.: D.C. Heath, 1976). The ideas leading to the signing of the Declaration of Independence are brilliantly discussed in Bernard Bailyn’s The Ideological Origins of the American Revolution (Cambridge, Mass.: Belknap Press of Harvard University Press, 1967), and in Gordon S. Wood’s The Creation of the American Republic, 1776-1787 (Chapel Hill: University of North Carolina Press, 1969). Dumas Malone’s The Story of the Declaration of Independence (New York: Oxford University Press, 1975) is a pictorial book prepared for the bicentennial of the signing of the Declaration of Independence and is useful not only for the story but also for its sketches of the lives of the signers of the declaration. Those are given in more detail in C. Edward Quinn’s The Signers of the Declaration of Independence (2d ed. The Bronx, N.Y.: The Bronx County Historical Society, 1988). Carl L. Becker’s classic account, The Declaration of Independence: A Study in the History of Political Ideas (New York: Vintage Books, 1922, reprint 1960), is still useful. Russell Kirk has a chapter on the ideas implied in the Declaration of Independence in his The Roots of American Order (3d ed. Washington, D.C.: Regnery Gateway, 1991). Many biographies of Thomas Jefferson are available, including Merrill D. Peterson, The Jefferson Image in the American Mind (New York: Oxford University Press, 1960). William H. Burnside

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ENGLISH BILL OF RIGHTS Description: Adopted in 1689, the bill was one of the great charters of English liberties that limited the power of the monarch, repudiated the notion that kings rule by divine right, protected the prerogatives of Parliament, and recognized a significant number of individual rights. Significance: An important component of England’s unwritten constitution, the English Bill of Rights included six rights later enumerated in the U.S. Bill of Rights, and it accustomed American colonists to the notion of a constitution that explicitly limits governmental powers and protects fundamental rights and liberties. The English Bill of Rights was a product of the Glorious Revolution of 1688, which resulted primarily from the stubborn attempts of England’s King James II to restore Roman Catholicism as the dominant religion and to limit the powers of Parliament. Refusing to enforce the Act of Uniformity, he appointed Catholics to important positions in the government and army. Judge Jeffreys’s infamous Bloody Assizes, in which some two hundred supporters of the Monmouth Rebellion were executed, convinced many people that James was a tyrant determined to emulate the absolutist model of France’s Louis XIV. Three developments of 1688 ignited the rebellion. First, James issued a new royal proclamation of religious toleration, suspending parliamentary statutes, and ordered the clergy to read it in the churches. Second, when seven bishops petitioned for permission to refuse the order, they were arrested and tried for seditious libel. Third, during the trial, James’s Catholic wife gave birth to a son, meaning that his Protestant daughter, Mary, would no longer be heir to his throne. In response, seven prominent leaders of Parliament invited Mary and her Dutch husband, William of Orange, to restore Protestantism and the constitutional position of Parliament. When William invaded England with fourteen thousand troops, popular support for his cause soon became overwhelming. In desperation, James fled to France, where he lived the rest of his life. Parliament, its powers restored, declared the throne vacant and invited William and Mary to serve as constitutional co-monarchs. Anglo-American colonists enthusiastically celebrated the change in England’s government. James’s consolidation of the northern colonies

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under a single royal colony had been highly disliked. On April 18, 1689, the people of Massachusetts arrested their governor, Sir Edmund Andros, and sent him back to England in chains. The leading Congregational minister, Cotton Mather, drafted a manifesto justifying the action. In New York City, Jacob Leisler led a revolt in the name of the new monarchs, while John Coode staged a popular uprising in Maryland. William and Mary were crowned king and queen of England in Westminster Abby on April 11, 1689. They were required to swear that they would obey all laws of Parliament. A proposed Bill of Rights was read during their coronation ceremony. Parliament formally enacted the bill after the coronation, and the king and queen endorsed it on December 16, 1689. Provisions in the English Bill of Rights can be grouped into three broad categories. First, several items related to the doctrine of parliamentary supremacy, including frequent sessions of Parliament, freedom of speech for its members, repudiation of the royal prerogative to suspend legislation, and the necessity of Parliament’s consent for levying taxes and for the keeping of a standing army. Second, the document established rules for succession and restricted the crown to Protestants. Third, it asserted a number of individual liberties and procedural safeguards against arbitrary government, including the right of petition, the right of Protestants to “have arms for their defense,” the importance of “duly impaneled” juries, and the repudiation of “cruel and unusual punishments” and “excessive bail,” A century later, the English Bill of Rights served as a major source for the first eight amendments to the U.S. Constitution. In fact, the 1689 document contained provisions similar to six clauses in those amendments: the document’s condemnation of cruel punishments and excessive bails closely resembles the Eighth Amendment; its recognition of the limited right to keep arms is similar to the Second Amendment; its right of petition is almost identical to this guarantee in the First Amendment; its condemnation of peacetime “quartering soldiers contrary to law” is also found in the Third Amendment; and its endorsement of jury trials is reaffirmed in the Sixth and Seventh Amendments, although the latter contain greater specificity about procedures. In contrast to the more absolutist language in the American amendments, the English document usually employed the terms “ought to be” or “ought not to be.” More important than its specific wording, the English Bill of Rights provided Americans of the revolutionary generation with the idea that a

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well-designed constitution should include a listing of the basic privileges and immunities of citizenship. Without the English model, it is entirely possible that the U.S. Constitution would not include the first ten amendments. Thomas T. Lewis

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FEDERALISM Description: Political union and the resulting constitutional structures that configure relationships among the states and institutions of national governance. Significance: Problems of federalism involve questions of constitutional structure. The Supreme Court has expressed its position on relationships among institutions of national and state governance and enforced federal constitutional limitations against the states. Even before the U.S. Constitution went into effect, there were serious debates about what type of political system it would create—and what type of union had already been formed. Part of the problem was multiple and shifting word usages. Those advocating the Constitution’s ratification identified themselves as Federalists, described the new structures as partly federal, and claimed those structures were necessary to preserve the federal union. At the same time, members of the founding generation identified federalism with a confederation of sovereign states, as distinct from a consolidated or national government. Relying on these distinctions, James Madison in The Federalist (1788), No. 39, argued that the proposed Constitution was neither purely federal nor entirely national but instead included features of each. Federalism in the American context has since become identified with this hybrid political system—especially the Constitution’s configuration of national and state governing powers. Unlike the Articles of Confederation, the Constitution establishes a centralized government, which has institutions that directly represent the people and are capable, in turn, of acting directly on them. As a result of the Constitution’s delegation of limited powers to these institutions, however, the states continue to hold independent governing powers. The states also play other important roles within the constitutional order, through, among other mechanisms, their equal representation in the Senate and their participation in constitutional amendment. Not surprisingly, controversies involving problems of federalism survived the Constitution’s ratification. Some such controversies—but certainly not all those of constitutional significance—have arisen in the context of litigation. Accordingly, the Supreme Court played an important role in the development of American federalism on several fronts. In the

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process, the Court articulated a range of competing conceptions of the constitutional design. Questions of Federal Jurisdiction. One set of issues centered on problems of jurisdiction and matters of interpretive or decisional authority. Article III of the U.S. Constitution defines the jurisdiction of federal courts as including cases or controversies “between Citizens of a State and Citizens of another State.” In Chisholm v. Georgia (1793), the Court held that this provision authorized federal courts to decide a suit against Georgia brought by two citizens of South Carolina. Two years later, Congress and the states overturned this holding by passing the Eleventh Amendment, which restricts federal courts from hearing suits against states brought by citizens of other states or by citizens of foreign nations. In subsequent decisions, the Court held that this amendment also bars suits against a state by its own citizens without its consent. However, the significance of these exceptions has been diluted by the Fourteenth Amendment, along with distinctions between the states and state officials. As explained below, a fertile area of constitutional litigation involves federal courts’ enforcing the U.S. Constitution and federal laws against the states and state actors. Article III delegates to federal courts the authority to decide some cases based on the identity of the litigants, as with lawsuits between citizens of different states. Federal courts also have authority to decide controversies based on the subject matter, including cases “arising under th[e] Constitution, the Laws of the United States, and Treaties.” Especially during the republic’s first century, substantial conflict surrounded the Court’s assertions of appellate power to review decisions by state courts in cases raising such “federal questions.” Most prominently, in Martin v. Hunter’s Lessee (1816), a civil case, and Cohens v. Virginia (1821), a criminal case, the justices insisted that they had final authority to review decisions by state courts. In both contexts, state courts denied that the Supreme Court had authority to review or reverse their decisions. Challenges of federal authority by state judges, legislatures, and others continued through the antebellum period and into the twentieth century. The Court responded to one such challenge in Ableman v. Booth (1859), in the context of efforts by the Wisconsin supreme court to authorize the release of prisoners from a local jail based on the state judges’ position that the federal Fugitive Slave Act of 1850 was unconstitutional. In response, Chief Justice Roger Brooke Taney unflinchingly reasserted the Supreme Court’s interpretive supremacy. He claimed that “no power

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is more clearly conferred by the Constitution and laws of the United States, than the power of this court to decide, ultimately and finally, all cases arising under such Constitution and laws.” (Ironically, however, the Court’s position on the constitutional status of slavery was soon overruled by the Civil War and Reconstruction amendments.) Almost one hundred years later, Chief Justice Earl Warren echoed Taney’s position on the preeminence of the Court’s interpretive powers in Cooper v. Aaron (1958). In that case, the justices sought to overcome resistance to their previous ruling in Brown v. Board of Education (1954). Collapsing the constitutional text into its interpretation by the justices, Warren proclaimed that “the interpretation of the Fourteenth Amendment by this Court in the Brown Case is the supreme law of the land, and Article 6 of the Constitution makes it of binding effect on the States.” Early Views of Federal-State Relations. Woven through these cases raising questions of jurisdictional and decisional authority were controversies over the scope of Congress’s powers (or federal powers more generally) and their relationships to state powers, along with efforts to enforce other limitations on the states. Among other things, the Supreme Court justices took positions on the constitutional status of slavery, the scope of the Constitution’s delegation of commercial powers and their negative implications, implied powers, and taxing and spending powers. The Tenth Amendment was at the center of these debates because it both presupposes that federal powers are intrinsically limited and refers to reserved powers of “the states” and “the people.” The Fourteenth Amendment was also centrally relevant, as it was the vehicle for the Court’s applying much of the Bill of Rights to the states, along with additional guarantees of due process and equal protection. During the republic’s early years, the federal government’s role was relatively limited compared to that of the states. Nevertheless, in cases such as McCulloch v. Maryland (1819) and Gibbons v. Ogden (1824), Chief Justice John Marshall offered a vigorous conception of federal powers and emphasized the supremacy of delegated over reserved powers. He presumed that federal powers were intrinsically limited and thus were consistent with the states’ continuing to have substantial regulatory autonomy. However, he did not regard state powers as affirmative limitations on congressional powers or as capable of interfering with their exercise. Therefore, he claimed that state powers must give way to legitimate assertions of federal power.

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Taney, Marshall’s successor, developed the idea of state police powers and placed greater emphasis on the limited scope of federal powers. Beneath the surface if not always transparently, there was recurring concern during Taney’s tenure with problems of slavery. In some contexts, he and his colleagues treated federal and state powers as potentially overlapping, as with powers of commercial regulation in general. At the same time, the justices treated some federal and state governing powers as mutually exclusive and reciprocally limiting. Taney relied on a version of the latter approach, characteristically dual federalist, in Scott v. Sandford (1857). Among other things, he argued that limitations on Congress’s powers relating to slavery corresponded to—and protected—powers reserved exclusively to the states. The predominant view during the antebellum period, as articulated by Chief Justice Marshall in Barron v. Baltimore (1833), was that federal judges lacked authority to enforce the Bill of Rights against the states. Other parts of the constitutional text, such as Article I, section 10, imposed limitations directly on the states. The Court interpreted some constitutional delegations of power to Congress as preempting state regulations within certain “spheres.” However, the Court, along with Congress, allowed large measures of state autonomy. Accordingly, dual federalism largely prevailed in both theory and practice. Constitutional Transformations. The Civil War and Reconstruction substantially altered these relationships between institutions of federal and state governance, along with their respective relationships to the people at large. During the war itself, governing power became increasingly centralized, supporting further consolidations of national power after the war. These tendencies were exacerbated, moreover, by problems of reconstruction. The Thirteenth, Fourteenth, and Fifteenth Amendments altered representational structures, imposed additional limitations on the states, and otherwise sought to reduce state autonomy and enhance national powers. During these transformative periods, the Court’s role was mixed. In Ex parte Merryman (1861), the Taney Court denied that President Abraham Lincoln had authority to suspend the writ of habeas corpus. However, the president refused to comply with this decision, and in the Prize Cases (1863), a majority of the justices upheld Lincoln’s blockade of Southern ports. After the war, in Ex parte Milligan (1866), the Court reasserted itself, with Salmon P. Chase as chief justice, by invalidating the military trial of a civilian when civil courts were open. In Mississippi v. Johnson (1867),

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Georgia v. Stanton (1868), Ex parte McCardle (1869), and Texas v. White (1869), however, the justices refrained in various contexts from taking a position on the validity of military reconstruction. In the last of these cases, Chase supported the cause of the Union by proclaiming that “the Constitution in all its provisions looks to an indestructible Union com-

The post-Civil War Reconstruction years were a time of both political and legal upheaval in the United States. (Library of Congress)

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posed of indestructible states.” Thus, he denied that states could legitimately secede from the Union, claimed that the war had altered relationships between the rebellious states and the Union, and affirmed congressional power to restore republican governments in the South. The judges initially interpreted the Thirteenth, Fourteenth, and Fifteenth Amendments as supporting Congress’s power to secure civil rights from abridgement by the states or individuals. However, soon the justices joined a broader retreat from Reconstruction, as signaled by the opinions in Slaughterhouse Cases (1873) and Civil Rights Cases (1883). Justices Samuel F. Miller and Joseph P. Bradley wrote the respective majority opinions. In the former case, the Court upheld a monopoly on the slaughtering of meat in New Orleans; in the latter, it invalidated the Civil Rights Act of 1875. From opposite directions, these two decisions perpetuated models of dual federalism. Dual Federalism. In Slaughterhouse Cases, Miller claimed that the “one pervading purpose” of the Thirteenth, Fourteenth, and Fifteenth Amendments was “the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen.” Though he suggested that other races might benefit from their guarantees, Miller denied that these amendments “radically changed the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people.” More specifically, he denied that the privileges or immunities clause of the Fourteenth Amendment “was intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States.” Nor did that clause “constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens.” He staked out corresponding positions on the Thirteenth Amendment and the Fourteenth Amendment’s due process and equal protection clauses. In Civil Rights Cases, Bradley likewise argued that the Fourteenth Amendment did not “invest Congress with power to legislate upon subjects which are within the domain of State legislation.” In his view, the amendment provided remedies for abridgements of rights by states, not individuals. Relying on the Tenth Amendment, a majority of the justices claimed that the law regulating individual actions exceeded Congress’s delegated powers. Although the Court would subsequently adhere to aspects of the majority opinions in these two cases, many of the dissenters’ arguments

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would eventually prevail in one form or another. The dissents of Justices Stephen J. Field and Bradley in Slaughterhouse anticipated judicial enforcement of commercial rights as limitations on the states in reliance on the due process clause of the Fourteenth Amendment. Federal judges went even further by relying on that clause as the primary vehicle for enforcing much of the Bill of Rights against the states, making prescient Justice Noah H. Swayne’s characterization of the amendment as “a new Justice Noah H. Swayne called the Fourteenth Magna Charta.” Justice John Amendment a “new Magna Charta.” (Collection of the Supreme Court of the United States) Marshall Harlan’s dissent in the Civil Rights Cases likewise anticipated national regulation of individual actions. Relying on the Fourteenth Amendment and Article I’s delegation of commercial powers, Congress in the twentieth century asserted—and the justices upheld—sweeping national civil rights legislation, economic regulations, and other expansions of national power. In the meantime, the Court enlisted the Fourteenth Amendment, along with the Fifth and Tenth, to promote economic laissez-faire. Lochner v. New York (1905) and Hammer v. Dagenhart (1918) epitomize the restrictive decisions of this era. Both dealt with matters of federalism: the first through the justices’ invalidation of a state law in reliance on the U.S. Constitution; the second because the majority relied on dual federalist premises to strike down an act of Congress. In Lochner, the Court held that a state maximum-hour workday law for bakers deprived them of liberty without due process of law in violation of the Fourteenth Amendment’s due process clause; and in Hammer, they argued that a federal law regulating child labor exceeded Congress’s powers, conflicted with the Fifth Amendment, and encroached on powers reserved exclusively to the states. The combined result of such decisions was to treat a wide range of

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commercial transactions (but not all) as beyond the legitimate reach of governmental restriction, federal or state. The Modern Era. Controversy over this issue erupted during the New Deal. In response to intense pressure from President Franklin D. Roosevelt, Congress, state legislatures, and various constituencies, the Court shifted its posture in the late 1930’s and early 1940’s. West Coast Hotel Co. v. Parrish (1937) and United States v. Darby Lumber Co. (1941) both signaled and epitomized this change, often described as “revolutionary.” In West Coast, the Court employed deferential reasoning to uphold a state minimum-wage, maximum-hour law, and in Darby, it affirmed Congress’s powers to regulate terms of employment. In the process, the Court rejected dual federalist premises: Instead of presuming that federal and state powers were mutually exclusive and reciprocally limiting, they treated such powers as substantially overlapping, in many ways complementary, but with federal powers supreme. The Court did not, however, entirely withdraw from enforcing constitutional limitations on the states. On the contrary, United States v. Carolene Products Co. (1938) suggested that the Court would continue to enforce enumerated rights, seek to guard political processes, and ensure fidelity to requirements of equal protection. Such efforts and their extensions gained momentum through the Civil Rights and women’s movements and social change more generally, culminating in Warren and postWarren Court precedents such as Brown v. Board of Education (1954), Mapp v. Ohio (1961), Miranda v. Arizona (1966), Griswold v. Connecticut (1965), and Roe v. Wade (1973). Chief Justice Earl Warren’s successors, Warren E. Burger and William H. Rehnquist, led modest retreats from these overall trends toward the Court’s upholding greater concentrations of central governing power along with increased supervision of state actions. For example, in National League of Cities v. Usery (1976), the Court invalidated provisions in the Fair Labor Standards Act (1938) as they applied to the states. However, a majority of the justices overruled this decision nine years later in Garcia v. San Antonio Metropolitan Transit Authority (1985). Once again invoking principles of federalism, the Court in United States v. Lopez (1995) invalidated a federal law limiting possession of guns near schools. For the first time since 1937, a majority of the justices held that Congress had exceeded its commercial powers. Then in Seminole Tribe v. Florida (1996) and Printz v. United States (1997), respectively, the justices revitalized the

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Eleventh Amendment and held that Congress could not command state and local officials to enforce a federal law. These cases, along with others involving issues of affirmative action, term limitations, criminal processes, and other matters, have been at the center of ongoing debates involving matters of federalism in the United States. Cases from the founding period exemplify ways that constitutionalism in the United States rests on a premise that the states and the people may act through representational structures in some capacities while acting independently of them in others. Principles of federalism are at the heart of these interactions, forming and being reformed by ongoing commitment to constitutional governance. Rather than being settled by more than two hundred years of practice, these principles have remained radically contestable. Further Reading Charles Warren’s “Legislative and Judicial Attacks on the Supreme Court of the United States: A History of the Twenty-fifth Section of the Judiciary Act,” American Law Review 47 (1913-1914):1-34, 161-189, reviews the history of jurisdictional problems confronted by the Court. Edward S. Corwin’s “The Passing of Dual Federalism,” Virginia Law Review 36 (1950): 1-23 contains a concise account of the Court’s shifting approach to federalism during the New Deal, and the special 1985 issue of the Georgia Law Review titled “Federalism: Allocating Responsibility Between the Federal and State Courts” explores subsequent constitutional developments. Federalism is placed in its historical and theoretical context in A Nation of States: Essays on the American Federal System (Chicago: Rand McNally, 1963), edited by Robert A. Goldwin; Raoul Berger’s Federalism: The Founders’ Design (Norman: University of Oklahoma Press, 1987); and How Federal Is the Constitution? (Washington, D.C.: American Enterprise Institute for Public Policy Research, 1987), edited by Robert A. Goldwin and William A. Schambra. Similar treatments of federalism can be found in Wayne D. Moore’s Constitutional Rights and Powers of the People (Princeton, N.J.: Princeton University Press, 1996) and Daniel J. Elazar’s Covenant and Constitutionalism: The Great Frontier and the Matrix of Federal Democracy (New Brunswick, N.J.: Transaction, 1998). For a progressive approach to federalism, see the essays in “Constructing a New Federalism: Jurisdictional Competence and Competition,” Symposium Issue, Yale Law and Policy Review/Yale Journal on Regulation (1996). Wayne D. Moore

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FUNDAMENTAL RIGHTS Description: The idea that a select number of constitutional rights are so essential to American traditions of liberty and justice that they deserve special recognition and protection. Significance: The Supreme Court utilized the doctrine of fundamental rights as a basis for deciding which provisions of the Bill of Rights should be binding on the states through incorporation of the Fourteenth Amendment. After the 1950’s, moreover, the Court began applying “strict scrutiny” standards when examining governmental restrictions on those rights deemed to be fundamental. James Madison, when making his proposal for a bill of rights in 1789, did not declare that all of his suggested amendments were of equal significance. Indeed, he wrote of his special concern for his rejected proposal that would have prohibited the states from violating “the equal rights of conscience, nor the freedom of speech, or of the press, or the trial by jury

At the beginning of the American Revolution, Patrick Henry delivered a speech before the Virginia Assembly containing the famous phrase, “Give me liberty, or give me death!” As an expression of one of the most fundamental rights, that line became a war cry of the Revolution. (Library of Congress)

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in criminal cases.” He clearly considered these particular rights to be more basic than some of the other provisions, such as those enumerated in the Third and Seventh Amendments. The term “fundamental rights” entered American jurisprudence in Justice Bushrod Washington’s circuit court opinion, Corfield v. Coryell (1823), which focused on Article IV’s entitlement of “privileges and immunities of Citizens in the several states.” Washington, who was influenced by the natural law tradition, wrote that this entitlement included a few rights which were “in their very nature, fundamental; which belong of right, to the citizens of all free governments.” While he wrote that it was impossible to list all fundamental rights, he gave a few examples, such as the rights to own property and to travel through the states. John Bingham and the other framers of the Fourteenth Amendment often quoted Corfield when discussing the “privileges or immunities” clause (commonly known as the “P or I clause”) which they inserted into the new amendment. Although it is doubtful that most framers expected the privileges or immunities clause to make each and every provision in the Bill of Rights binding on the states, many of them suggested that it would prohibit the states from violating the more fundamental of these rights, such as the First Amendment’s guarantee of free speech. The Supreme Court, however, gave an unusually restrictive interpretation to the clause in the Slaughterhouse Cases (1873), an interpretation that has never been directly overturned. During the years from 1897 to 1937, the majority of the justices held that the freedom to enter into contracts was one of the fundamental rights guaranteed by the Fifth and Fourteenth Amendments. They based this right on a substantive interpretation of the due process clause, as in Adkins v. Children’s Hospital (1923), which overturned a federal minimum wage requirement as an unconstitutional infringement on a protected liberty. Beginning in 1937, however, a majority of the justices accepted that government might restrict the freedom of contract in order to promote reasonable public interests. At the same time, the liberal members of the Court became increasingly concerned for the civil liberties enumerated in the first eight amendments. For a number of years, the judges had been arguing about which, if any, of these rights should be incorporated into the Fourteenth Amendment, thus making them applicable to the states. In the seminal case, Palko v. Connecticut (1937), Justice Benjamin Cardozo argued for the incorporation of those rights that were “fundamental,” either because they

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were “of the very essence of a scheme of ordered liberty,” or because they were “principles of justice so rooted in the traditions and conscience of our people as to be ranked fundamental.” In later years, the majority of the justices endorsed some variation of Cardozo’s approach to incorporation. A related question was whether the Court should apply the same standards of scrutiny when considering fundamental rights that they applied when considering less essential rights. In the famous “footnote four” of United States v. Carolene Products, Co. (1938), Justice Harlan Stone suggested that it might be appropriate to utilize a heightened level of scrutiny when examining three kinds of policies: (1) those appearing to contradict an explicit constitutional prohibition; (2) those appearing to interfere with political processes, such as a limitation on the right to vote; and (3) those that discriminate against members of racial or religious minorities. Years later, the footnote’s advocacy of a double standard would provide ammunition for proponents of liberal judicial activism. During World War II, beginning with Murdock v. Pennsylvania (1943), the Court’s majority accepted the doctrine of “preferred freedoms,” extending special judicial protections for the freedoms of the First Amendment. Similarly, in Korematsu v. United States (1944), the majority opinion declared that public policies discriminating on the basis of race were “immediately suspect,” therefore requiring “the most rigid scrutiny.” Building on these precedents, the Warren Court established the use of the “strict scrutiny” standard during the 1950’s and 1960’s, whenever examining public policies with suspect classifications of persons, or public policies restricting fundamental rights. When dealing with the second category, the justices first asked whether the policy could be justified by a compelling public interest, and then they demanded the government to show that it could not achieve its purpose with a policy that was less restrictive of the fundamental right. A good example of the Warren Court’s approach to protecting fundamental rights was Sherbert v. Verner (1963), which overturned a state unemployment compensation law that only indirectly placed a burden on a religious practice. In Griswold v. Connecticut (1965), moreover, the Court declared that the right of privacy was a fundamental right, even though the term was not in the Constitution. The Court also held that the right of interstate movement was fundamental in Shapiro v. Thompson (1969). These activist decisions prepared the way for the monumental case, Roe v. Wade (1973), in which the justices expanded the right of privacy to in-

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clude a woman’s fundamental right to terminate an unwanted pregnancy. After William Rehnquist became chief justice in 1986, the Court’s conservative majority overturned several precedents concerning fundamental rights and strict scrutiny. In Planned Parenthood v. Casey (1992), for example, the Court endorsed a more permissive “undue burden” standard for evaluating restrictions on the abortion rights of women. In Employment Division v. Smith (1990), likewise, the majority of the justices announced that they would no longer use the standard of strict scrutiny when examining legislation of general applicability that placed an incidental burden on religion practices. When evaluating racial preferences in affirmative action programs, however, the Rehnquist Court applied the demanding standard of strict scrutiny. Thomas T. Lewis

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INCORPORATION DOCTRINE Description: Process by which the Supreme Court has gradually nationalized the Bill of Rights, requiring state governments to extend to residents much the same rights as the federal government must. Significance: The Court held that some of the rights protected by the first eight amendments to the Constitution are also safeguarded by the due process clause of the Fourteenth Amendment. In Barron v. Baltimore (1833), the Supreme Court ruled that rights enumerated in the Bill of Rights restrained the actions of the United States government, not the actions of the state governments. Specifically, the Court held that the eminent domain clause of the Fifth Amendment did not apply to a dispute over whether the city of Baltimore had taken Barron’s property for public use without just compensation. After the passage of the Fourteenth Amendment in 1868, lawyers began to seek ways to use its provisions to undermine Barron. The two provisions that lent themselves to this effort were the privileges and immunities clause and the due process clause. These two clauses appear next to one another in the amendment: “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.” In the Slaughterhouse Cases (1873), the attorney for the petitioners argued that engaging in a lawful and useful occupation was a privilege or immunity of U.S. citizenship and an aspect of liberty or property that could not be taken away without due process of law. At issue was an act of the Louisiana legislature creating a corporation and bestowing on that corporation a monopoly over the New Orleans slaughterhouse industry. Butchers disadvantaged by the law asked the courts to declare it unconstitutional. Failing to get a favorable result in the state courts, they appealed to the U.S. Supreme Court. Justice Samuel F. Miller wrote an opinion that differentiated between privileges or immunities of U.S. citizenship and privileges or immunities of state citizenship. Only the former were protected by the Fourteenth Amendment, and engaging in a lawful and useful occupation was not among them; it was an aspect of state, not national, citizenship. In a similar vein, Justice Miller argued that due process protected persons against

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Justice Samuel F. Miller, who served on the Court from 1862 to 1890, held a narrow view of the Fourteenth Amendment’s relevance to the Bill of Rights. (Collection of the Supreme Court of the United States)

takings of life, liberty, or property by improper procedures but did not place limitations on the substance of laws themselves. The Due Process Clause. The Court continued its narrow interpretation of the privileges or immunities clause in subsequent cases, but its view of the due process clause gradually changed. In Hurtado v. California (1884), the Court rejected the contention that the Fifth Amendment right to indictment by a grand jury in serious criminal cases was part of Fourteenth Amendment due process. However, in Chicago, Burlington, and Quincy Railroad Co. v. Chicago (1897), the Court held that the Fifth Amendment right to just compensation when private property is taken for public use is part of the Fourteenth Amendment protection against property being taken without due process. The Court continued to view criminal proce-

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dure rights as less important in Maxwell v. Dow (1900) and Twining v. New Jersey (1908). In Maxwell, the Court found trial by jury not to be incorporated into Fourteenth Amendment due process, and in Twining, the justices reached a similar conclusion with respect to the immunity against compulsory self-incrimination. In the latter case, the Court did recognize that it was possible that some of the rights safeguarded by the first eight amendments might be part of the concept of due process and therefore be protected against state action. Additional Incorporations. It was some time after Twining, however, before the Court identified additional provisions of the first eight amendments to be incorporated into Fourteenth Amendment due process. In Gitlow v. New York (1925), the Court stated that it assumed that freedom of speech and of the press were among the liberties protected by the Fourteenth Amendment’s due process clause, but nevertheless upheld Benjamin Gitlow’s conviction for violating the New York law prohibiting language that advocated overthrow of the government by unlawful means. The Court subsequently held unconstitutional a conviction under a similar law in Fiske v. Kansas (1927) and overturned a state restriction on the press in Near v. Minnesota (1931), thereby confirming what it had assumed in Gitlow. In 1932 the Court appeared to incorporate the right to counsel when it decided Powell v. Alabama, but it later ruled in Betts v. Brady (1942) that the Powell decision was limited to capital offenses. In a case reminiscent of Gitlow, the Court said in Hamilton v. Board of Regents of the University of California (1934) that freedom of religion was part of the concept of due process, but that a religious pacifist was not entitled to an exemption from the military training required by the university. The Court did clearly hold in DeJonge v. Oregon (1937) that the right to assemble peacefully was implicit in due process. This right barred the state of Oregon from convicting Dirk DeJonge for attending a peaceful meeting sponsored by the Communist Party. A few months after the DeJonge decision, the Court attempted to provide a rationale for its incorporation decisions. The case was Palko v. Connecticut (1937). Frank Palko had been retried and convicted of firstdegree murder after his conviction for second-degree murder had been overturned by the state supreme court. Prosecutors argued, and the state high court agreed, that the trial court judge had erred in excluding Palko’s confession to robbery and murder in the first trial. Palko’s attor-

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ney argued that the two trials constituted double jeopardy in violation of the Fifth Amendment, as incorporated by the due process clause of the Fourteenth. Justice Benjamin N. Cardozo wrote for the Court that only those rights “implicit in the concept of ordered liberty” were part of the notion of due process. These rights were so important “that neither liberty nor justice would exist if they were sacrificed.” Justice Cardozo did not find the sort of double jeopardy involved in the Palko case inconsistent with the nation’s fundamental principles of justice, and double jeopardy was, accordingly, not incorporated. After Palko, the Court once again incorporated rights at a deliberate pace. It absorbed freedom to petition for redress of grievances in Hague v. Congress of Industrial Organizations (1939). Cantwell v. Connecticut (1940) confirmed the Hamilton statement that freedom of religion had been incorporated. The Court assumed that establishment of religion and the prohibition of cruel and unusual punishment were incorporated in 1947, although neither case, Everson v. Board of Education of Ewing Township and Louisiana ex rel. Francis v. Resweber respectively, resulted in state action being overturned. The Court confirmed its assumptions in these two cases in Illinois ex rel. McCollum v. Board of Education (1948), which struck down a religious education program conducted on school property as a violation of the establishment clause, and Robinson v. California (1962), which found a law that made being a drug addict a status crime, to be cruel and unusual punishment. In 1948 the Court incorporated the right to a public trial in the case of In re Oliver and the requirement of due notice of the charges against a criminal defendant in Cole v. Arkansas. An Alternative View. In Adamson v. California (1947), the Court again confronted the matter of a rationale for its incorporation doctrine. In this case, the Court once again held that the immunity against selfincrimination was not a part of due process of law. In a lengthy dissent, Justice Hugo L. Black argued that the framers of the Fourteenth Amendment had intended to incorporate all of the provisions of the first eight amendments into the Fourteenth. The Court rejected his views by a 5-4 vote. Justices Frank Murphy and Wiley B. Rutledge, Jr., agreed with Black, but contended that the Court should not restrict the meaning of due process to the rights contained in the first eight amendments. Black, a textualist, wanted to limit the meaning of due process in this way. Justice William O. Douglas agreed with Black in Adamson, but in later cases adopted the Murphy-Rutledge position.

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Two years later, in Wolf v. Colorado (1949), Justice Felix Frankfurter put forward an alternative view of what incorporation meant. At issue was the Fourth Amendment concept of unreasonable search and seizure. Frankfurter conceded that this right was part of due process but argued that only the essential core of the right—not the specific meanings of that right worked out by the federal courts for use in cases involving the U.S. government—restrained state action. Therefore the exclusionary rule, which meant that federal judges could not admit criminal evidence seized in violation of the Fourth Amendment, did not apply to the states. Instead, the courts would have to determine on a case-by-case basis whether states had violated the essential core meaning of the Fourth Amendment. Justice Black referred to this doctrine as applying a “watered down version” of the Bill of Rights to the states. The Frankfurter position dominated the Court in the 1950’s, especially in criminal procedure matters such as search and seizure cases. Use of the case-by-case approach was brought to an end by Mapp v. Ohio (1961), in which the Court held that states were obliged to follow the exclusionary rule. After the Mapp decision, the Court incorporated an additional seven rights in seventeen years. The Court first acted on the right to counsel in felony cases in Gideon v. Wainwright (1963) and expanded this right to include misdemeanors where a jail term was possible in Argersinger v. Hamlin (1972). Next it incorporated the immunity against selfincrimination in Malloy v. Hogan (1964) and the right to confront and cross-examine adverse witnesses in Pointer v. Texas (1965). The Court incorporated the right to a speedy trial in Klopfer v. North Carolina (1967) along with the right to compulsory process to obtain witnesses in Washington v. Texas (1968). It followed with the right to a jury trial in Duncan v. Louisiana (1968) and completed its incorporation jurisprudence with double jeopardy in Benton v. Maryland (1969). Only the Second Amendment right to keep and bear arms, the Third Amendment right against quartering soldiers, the Fifth Amendment right of grand jury indictment, the Seventh Amendment right to a jury trial in civil cases, and the Eighth Amendment protection against excessive bail and fines remain beyond the scope of due process. The selective incorporation doctrine of Palko remains the majority view. However, Frankfurter’s case-by-case approach continues to enjoy considerable support. Justice John Marshall Harlan II, Chief Justice Warren Burger, and Justice Lewis F. Powell, Jr., supported the doctrine when they were on the Court. Chief Justice William H. Rehnquist succeeded

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them as the strongest proponent of the case-by-case approach on the Court, and the doctrine seems to enjoy some favor among several other Court members as well. Justice Black’s total incorporation approach and the total incorporation-plus doctrine of Murphy and Rutledge have had little support since such justices as Douglas and Arthur J. Goldberg left the Court. Further Reading An excellent basic source on incorporation doctrine is Freedom and the Court: Civil Rights and Liberties in the United States by Henry J. Abraham and Barbara A. Perry (7th ed., New York: Oxford University Press, 1998). Horace Flack made a case for total incorporation of the first eight amendments in The Adoption of the Fourteenth Amendment (Baltimore, Md.: Johns Hopkins University Press, 1908), as did Michael Curtis in No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (Durham, N.C.: Duke University Press, 1986). Two scholars who agree in part with the total incorporation doctrine but reject some of the historical generalizations made by Justice Black and Professor Flack are Jacobus ten Broek, The Antislavery Origins of the Fourteenth Amendment (Berkeley: University of California Press, 1951) and J. B. James, The Framing of the Fourteenth Amendment (Urbana: University of Illinois Press, 1956). Raoul Berger’s Government by Judiciary: The Transformation of the Fourteenth Amendment (Cambridge, Mass.: Harvard University Press, 1977) forcefully rejects the total incorporation doctrine. Raold Y. Mykkeltvedt discusses the Frankfurter case-by-case approach in Nationalization of the Bill of Rights: Fourteenth Amendment Due Process and the Procedural Rights (Port Washington, N.Y.: National University Publications, 1983). In The Supreme Court and the Second Bill of Rights (Madison: University of Wisconsin Press, 1981), Richard C. Cortner tells the story of the cases in which the Court incorporated various rights into the Fourteenth Amendment. Daryl R. Fair

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INVERSE INCORPORATION Description: The Supreme Court gradually came to the conclusion that the equal protection requirement of the Fourteenth Amendment is binding on the federal government through the due process clause of the Fifth Amendment. Significance: Since the landmark case of Bolling v. Sharpe (1954), the Supreme Court has examined equal-protection claims against the federal government with the same standards of scrutiny that it uses when examining similar claims against the states. In contrast to the Declaration of Independence of 1776, neither the original Constitution nor the Bill of Rights explicitly mentioned an inherent right to equality. The wording of the Fifth Amendment, however, implied a degree of legal equality: “no person” was to be deprived of “life, liberty, or property, without due process of law,” nor was any person to be denied the privileges against self-incrimination or double jeopardy. The words “person” and “persons” apparently denoted human beings, and both words were used to refer to slaves in Articles I and IV of the Constitution. The same year that Congress approved the Bill of Rights, it expressed an egalitarian spirit in the Judiciary Act of 1789, requiring judges “solemnly [to] swear or affirm [to] administer law without respect to persons, and do equal right to the poor and to the rich.” Nevertheless, many federal laws mandated racial discrimination. The Naturalization Act of 1790, for instance, restricted naturalized citizenship to “any alien being a free white person.” Despite the due process clause, the Fugitive Slave law of 1850 did not allow alleged fugitives in northern states to testify in trials or hearings that determined their freedom or enslavement, and the law was found to be constitutional in Ableman v. Booth (1859). In the Dred Scott ruling (1857), moreover, the Court asserted that persons of African ancestry possessed “no rights which the white man was bound to respect.” The Fourteenth Amendment, which was ratified after the Civil War, prohibited the states from denying any person the “equal protection of the laws.” This important clause was not applicable to the federal government, apparently because the framers of the amendment were focusing on racial discrimination in the southern states. When debating the amendment, nevertheless, its framers often made moral allusions to the

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Declaration of Independence and expressed a belief that all governments were obligated to respect a natural right to equality. But for about a hundred years, the Supreme Court interpreted the equal protection clause so narrowly that the question of a possible federal application seemed of little consequence. Gibson v. Mississippi (1896) was probably the first case in which a Supreme Court justice unequivocally declared that the Fifth Amendment’s due process clause prohibited the federal government from practicing racial discrimination. Justice John Marshall Harlan, a former slave owner, explained that the clause protected the life, liberty, and property of “all persons within the jurisdiction of the United States.” Likewise, Justice Harlan Fiske Stone’s “footnote four” in Carolene Products v. United States (1938) did not make any distinction between the federal and state governments when suggesting that the Court should use heightened scrutiny in the evaluation of legislation that discriminated against “discrete and insular minorities.” During World War II, the Court had to decide whether discriminatory policies toward persons of Japanese ancestry violated constitutional rights. Approving a curfew in Hirabayashi v. United States (1943), Chief Justice Stone wrote for the Court that racial distinctions were “by their very nature odious to a free people whose institutions are founded upon the doctrine of equality,” and he also observed that precedents based on the equal protection clause would be “controlling” except for the dangers of espionage and sabotage. Although a 6-3 majority of the Court upheld the displacement program in Korematsu v. United States (1944), all the justices implicitly agreed that principles of due process prohibited the federal government from depriving persons of liberty simply because of their race or ethnicity. Justice Hugo Black’s majority opinion asserted that “all legal restrictions which curtail the civil rights of a single racial group are immediately suspect,” demanding “the most rigid scrutiny.” One member of the Court, Justice Frank Murphy wrote a dissent which articulated the concept of inverse incorporation: “Being an obvious racial discrimination, the [displacement] order deprives all those within its scope of the equal protection of the laws as guaranteed by the Fifth Amendment.” A decade later, in Brown v. Board of Education (1954), the Court ruled that segregated schools in the southern states were incompatible with the equal protection clause of the Fourteenth Amendment. In a companion case, Bolling v. Sharpe, the justices ruled that segregated schools operated

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by the federal government in the nation’s capital were also unconstitutional. Unable to base the Bolling decision directly on the Fourteenth Amendment, they relied instead on a substantive due process interpretation of the Fifth Amendment. As historical precedents, Chief Justice Earl Warren referred to the earlier dicta (or statements) of justices Harlan, Stone, Black, and Murphy. In his argument, Warren utilized a broad definition of liberty, which was said to include “the full range of conduct which the individual is free to enjoy.” Finding evidence that the policy of racial segregation denied African American children of basic life opportunities, he logically concluded that the policy constituted “an arbitrary deprivation of their liberty in violation of the due process clause.” Since the Bolling landmark, the Court has not recognized any distinctions between federal and state cases insofar as they relate to the standards of scrutiny for evaluating equal protection claims. In Rostker v. Goldberg (1981), for instance, the Court evaluated a gender classification of the federal government with an approach called “intermediate scrutiny,” the same approach used in considering gender classifications by the state governments. Moreover, in Adarand Constructors v. Peña (1995), the Court utilized the strictest level of judicial scrutiny in striking down a racial preference mandated by the federal government, just as it had earlier done in a case involving a racial preference by a city government. Federal cases dealing with equal protection under the Fifth Amendment have been relatively rare, compared to state cases relating to alleged violations under the Fourteenth Amendment. Thomas T. Lewis

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STATE CONSTITUTIONS Description: Supreme statements of state law, these documents outline fundamental political processes, set out the relationships between various governing institutions, and define a set of state-specific rights protected from government incursion. Significance: For more than a century after ratification of the U.S. Constitution, state constitutions served as the primary source of protection from state power, a role that was temporarily eclipsed and then given new life when the Supreme Court pruned back some federally protected liberties during the 1970’s, 1980’s, and 1990’s. While the Supreme Court and the U.S. Constitution are sometimes thought of as the exclusive guarantors of legal rights, for many years, state constitutions provided citizens with their basic protections. Indeed, many of the rights secured by early state constitutions were ultimately included in the Bill of Rights, thus ensuring they could not be violated by the federal government. Beginning in the twentieth century, however, the individual liberties in the Bill of Rights began to be applied by the Court to the states through the due process clause of the Fourteenth Amendment. By the late 1960’s most of the rights protected in the federal Constitution were protected from encroachment by state government as well. As a consequence of this expanded reach of federal rights, the importance of state constitutional rights receded. During the tenure of Chief Justices Warren E. Burger and William H. Rehnquist, the Court cut back on some of the liberties it had previously embraced, and citizens, politicians, and interest groups increasingly turned back to state constitutions for protection. State courts recognized a growing body of rights, including many that went beyond guarantees provided by the federal courts, giving rise to what some have called a new judicial federalism. The Supreme Court monitors the judicial decisions of state courts, including decisions based on interpretations of state constitutions, through the independent and adequate state grounds doctrine. Under the doctrine, the Court refuses to examine a case decided by a state court if that case does not raise questions about federal law and as long as the state ruling is genuinely independent of federal law. In Michigan v. Long (1983),

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the Court elaborated on the doctrine and gave itself greater discretion in deciding when it could examine state court decisions. Although this doctrine ultimately allowed for more intrusion by the federal courts into the judicial affairs of the states, it also affirmed the independent authority of the state court system and authorized the states to uphold greater protections in their constitutions than those in the Constitution. Although the Constitution and the Supreme Court establish a mandatory minimum for protected rights, state constitutions can be interpreted to secure additional rights. Protected Rights. Generally speaking, state constitutions contain both rights similar to those found in the U.S. Constitution and rights that are unique to the state. Although state judges frequently use federal doctrine to apply state constitutional rights resembling those in the U.S. Constitution, they have also interpreted these rights more independently. Indeed, in a number of areas including free speech, equal protection, and criminal rights, state courts have offered protections that exceed those found at the federal level. State constitutions also delineate rights that are distinct from those found in the U.S. Constitution. State constitutions have provided for special rights associated with education, welfare, health care, the environment, and collective bargaining, among others. In addition, a number of state constitutions include explicit privacy amendments, a right delineated by the Supreme Court but not explicitly mentioned in the U.S. Constitution. State court interpretations of these provisions have sometimes found them to guarantee greater protections than the federal right to privacy. Although state judges are powerfully influenced by the jurisprudence of the Supreme Court, the unique nature of many state constitutional provisions and the unwillingness of the Court to provide rulings on numerous constitutional issues means that state constitutions demand specialized, state-based interpretation. In the absence of relevant guidance from federal judges, state courts have sometimes turned to cases and doctrine provided by judges in other states. This horizontal federalism is most often practiced between states with similar constitutions. A number of scholars remain skeptical about the merits of the new judicial federalism, suggesting that state constitutions are often unwieldy and antiquated documents, more closely resembling ordinary legislation than fundamental charters of government. State constitutions, these crit-

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ics maintain, are poor substitutes for the centralized, unified, and enduring system of law provided by the Supreme Court and U.S. Constitution. Those applauding the reemergence of state constitutions as important sources of rights have argued that these documents have creatively and effectively bolstered liberties that have been undermined and ignored by the Court. In addition, state constitutions allow for greater popular expression, particularly since they are substantially easier to alter than the U.S. Constitution. Whatever their merits and shortcomings, state constitutions continue to affect how state government is organized and conducted. This fact, combined with their historic and continuing contribution to protecting rights, especially those neglected by the federal courts, places state constitutions at the very core of the U.S. political system. Further Reading Brennan, William J. “The Bill of Rights and the States: The Revival of State Constitutions as Guardians of Individual Rights.” New York University Law Review 61 (October, 1986): 535-553. Friesen, Jennifer. State Constitutional Law. Charlottesville, Va.: Michie, 1996. Tarr, G. Alan. Understanding State Constitutions. Princeton, N.J.: Princeton University Press, 1998. Tarr, G. Alan, and Mary Cornelia Porter. “State Constitutionalism and State Constitutional Law.” Publius, Journal of Federalism 17, no. 1 (Winter, 1987). Bruce G. Peabody

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VIRGINIA DECLARATION OF RIGHTS Description: The sixteen sections of the Virginia Declaration of Rights, adopted by the state of Virginia’s constitutional convention in June, 1776, asserted the doctrine of inherent rights and enumerated a large number of specific rights and liberties that governments should respect. Significance: The document profoundly influenced the content of the U.S. Bill of Rights, as well as the Declaration of Independence, the French Declaration of the Rights of Man, and various other bills of rights of other state constitutions. On May 15, 1776, The Virginia Convention unanimously endorsed independence from Great Britain and authorized a committee to prepare a plan of government and a Declaration of Rights. George Mason, a wealthy landowner and a self-taught lawyer, was the principal author of both the resulting state constitution and its accompanying declaration, although his friend, Thomas Ludwell Lee, also played an important part in drafting the document. After making a number of rhetorical changes, the convention unanimously adopted the declaration on June 12, 1776. Section 1 of the declaration asserted that “all men are born free and independent and have certain inherent rights,” including “the enjoyment of life and liberty, with the means of acquiring and possessing property.” It then acknowledged that governmental power “derived from the people,” that the three branches of government should be separate, that elections of representatives “ought to be free,” and that elective representatives should have the exclusive power of making or suspending laws. At least seventeen items in the Virginia Declaration closely resembled provisions that James Madison would later include in the U.S. Bill of Rights. Section 8 specified “that no man be deprived of his liberty except by the law of the land,” which was similar to the due process clause of the Fifth Amendment. In addition, Section 8 recognized a privilege against self-incrimination and other rights of criminal defendants that were found in the Fifth and Sixth Amendment. Section 11 proclaimed that the practice of trial by jury “is preferable to any other and ought to be held sacred.” The prohibitions of “cruel and unusual punishments,” “excessive

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bail,” and “excessive fines” in Section 9 were identical to those of the amendment. Section 10 made requirements for search warrants that resemble the Fourth Amendment. Section 12 recognized the freedom of the press as “one of the great bulwarks of liberty.” Section 13 proclaimed that people should be “trained in arms” in order to have a “well-regulated militia” and avoid the evils of standing armies. Finally, Section 16 acknowledged that “all men are equally entitled to the free exercise of religion, according to the dictates of conscience,” a freedom which was expressed more concisely in the First Amendment. The Virginia Declaration of Rights differed from the U.S. Bill of Rights in a number of particulars, especially its explicit recognition of inherent equality (despite the practice of slavery), its usage of the word “ought,” and its references to the positive duties of citizenship. In 1787, the man most responsible for Virginia’s Declaration, George Mason, became one of the most vociferous critics of the new U.S. Constitution because of its lack of a bill of rights. Thomas T. Lewis

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FIRST AMENDMENT Description: Amendment guaranteeing freedom of speech, freedom of the press, religious liberty, separation of church and state, and the rights peaceably to assemble and to petition the government for redress of grievances. (The full text of the First Amendment appears in this volume on page 391.) Significance: The wellspring of individual rights protected by the U.S. Constitution, the First Amendment presented the Supreme Court with endless challenges to decide the limits of governmental power and the scope of personal liberties. Although the First Amendment, together with the other nine amendments known as the Bill of Rights, became part of the U.S. Constitution on December 15, 1791, the Supreme Court took little note of it until the beginning of the twentieth century. This was not for lack of federal laws impinging on free speech, from the Sedition Act of 1798 and the Comstock Act of 1873 to the Alien Immigration Act of 1930 and a wide variety of postal regulations. However, the Court never found that any of these laws violated the First Amendment. Indeed, in 1907 the Court upheld the conviction of an editor for contempt, rejecting a defense based on the First Amendment on the grounds that it only prohibited prior restraint. It was inevitable that the Court and the First Amendment would travel together through U.S. constitutional law, frequently crossing paths, sometimes diverging, often forced by circumstances to retrace the same ground. Each clause of the First Amendment invites, indeed demands, judicial interpretation. Freedom of Speech. Beginning at the end of World War I, the Court tackled the task of devising a series of tests to determine whether particular speech was constitutionally protected. The Court could not merely cite the general language of the First Amendment; it had to apply those opaque terms to the real world of real cases. The first test was articulated by Justice Oliver Wendell Holmes in 1919 in a series of cases challenging the convictions of antiwar activists under the Espionage Act of 1917. The clear and present danger test looked at whether the speech posed a real and immediate risk of a substantive evil that Congress had a right to prevent. Holmes captured the test in a pow-

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erful, albeit often misquoted, metaphor that persists to this day: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” Later in 1919, Holmes and his ally, Justice Louis D. Brandeis, dissented in Abrams v. United States, arguing for greater constitutional protection for controversial or even subversive speech. The majority of the Court continued to use the clear and present danger test to uphold the punishment of such speech. Six years later, the majority of the Court tightened the noose on free speech by focusing on whether the expression had a bad tendency. Over bitter dissent from Holmes and Brandeis, the Court upheld a conviction under the New York State Criminal Anarchy Act, stating that a “single revolutionary spark may kindle a fire,” and therefore the state may “suppress the threatened danger in its incipiency.” In 1951 the Court used a slightly reformulated test to uphold the convictions of eleven members of the Communist Party under the Smith Act (1940). Chief Justice Fred M. Vinson, writing for the Court, asked “whether the gravity of the ‘evil’ discounted by its improbability” would justify government limits on speech. In 1964 Justice William J. Brennan, Jr., introduced a test that was far more protective of free speech. In the landmark case of New York Times Co. v. Sullivan, the Court held that false criticism of public officials was constitutionally protected unless it was made with knowledge that it was false or in reckless disregard of the truth. Instead of tilting the constitutional balance in favor of the government, the Sullivan test gave the advantage to the speaker. The Holmes-Brandeis view in favor of more robust protection for free speech was finally vindicated in 1967 in Brandenburg v. Ohio, in which the Court declared that mere advocacy of the use of force or violation of the law could no longer be punished unless “such advocacy is directed to inciting or producing imminent lawless action and is likely to produce such action.” The Religion Clauses. As in the field of free speech, the perplexing issues surrounding freedom of religion have required the Court to fashion several constitutional tests to ensure the free exercise of religion, without establishing a state-sponsored religion. As the twentieth century ushered in an era of secularization, the dominance of religion in public life began to be seen as inconsistent with the First Amendment’s promise of neutrality

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FIRST AMENDMENT CONTROVERSIES Issue

Reasons to Limit

Reasons Not to Limit

Does the First Amendment protect the right of members of the Native American Church to smoke peyote as part of their religious rituals?

Peyote is a controlled substance. To permit its use might endanger the lives of the user and others.

The free exercise of religion by the Native American Church requires the use of peyote. Freedom of religion should not be infringed.

Does the First Amendment protect the right of art galleries to display publicly artworks that may be considered obscene or offensive?

The First Amendment does not protect pornography or obscenity. If a work is considered offensive by people in the community, it should not be displayed.

Freedom of speech and freedom of the press imply free expression. Art is in the eye of the beholder.

Does the First Amendment protect those who burn the American flag in violation of state laws?

The flag is the country’s most important symbol. State governments ought to be allowed to protect it.

Burning the flag is as legitimate an act of protest as speaking out against a government policy. Preventing flagburning would be banning a form of political expression.

Should schools and public libraries ban books that contain racially offensive terms?

Use of some racial terms is offensive and may lower the self-esteem of minority students.

Censorship restricts the flow of ideas. Students would be prevented from reading literature that was written in a time when such terms were considered more acceptable.

Should the press be allowed to print any government documents?

The press’s freedom should be restricted to ensure national security.

Government decisions should be exposed to the will of the people.

Should newspapers and the media be allowed access to participants in a trial before a verdict has been delivered?

Unlimited discussion of trial-related matters in a public forum may infringe upon Fifth Amendment rights to due process.

Matters of public concern should be open for discussion.

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when it came to religious faith. Religion was seen as a part of the private sphere of life, leaving the public sphere, including most visibly public schools, free of religious symbols, let alone indoctrination. In several decisions spanning more than twenty years, from Everson v. Board of Education of Ewing Township in 1947 to Lemon v. Kurtzman in 1971, the Court developed the test that any governmental action touching on religion would survive invalidation under the establishment clause only if it had a secular purpose that neither endorsed nor disapproved of religion, had an effect that neither advanced nor inhibited religion, and avoided creating a relationship between religion and government that entangled either in the internal affairs of the other. The Lemon test has been criticized by all ends of the political and constitutional spectrum, but it has provided lower courts and legislators with some level of guidance in dealing with such thorny issues as prayer in schools and financial aid to religious institutions. Meanwhile, the Court had to interpret the free exercise clause of the First Amendment in numerous cases in which believers claimed a right to ignore laws that required them to perform an act that violated their religious beliefs or that prohibited them from performing an act that was required by their religious beliefs. Beginning in 1879 in Reynolds v. United States and for almost a hundred years, the Court dealt with most free exercise cases by upholding laws that punished actions but struck down laws that punished beliefs. However, the easy dichotomy began to break down when, in Sherbert v. Verner (1963), the Court ordered a state to pay unemployment benefits to a Seventh-day Adventist even though she would not make herself available for work on Saturday (her Sabbath). In 1972, in Wisconsin v. Yoder, the Court held that the Amish were not required to send their children to public school past the eighth grade in violation of their religious beliefs. By the 1980’s, the pendulum had begun to swing against religious liberty as the Court issued a succession of decisions ruling against a Native American who sought to prevent the government from assigning his daughter a social security number, an Orthodox Jew who sought to wear a yarmulke in violation of Air Force uniform regulations, a Native American tribe that sought to prevent construction of a federal highway that would interfere with their worshiping, and two Native Americans who sought unemployment compensation after they were fired from their jobs for smoking peyote as part of tribal religious rituals. The Court has found the religion clauses of the First Amendment

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fraught with interpretative dangers. Inevitably, the Court is criticized either for going too far in promoting religion or for exhibiting hostility toward religion. That alone may be evidence that the Court is doing its job as conceived by the Founders. The Right Peaceably to Assemble. Although freedom of speech and freedom to worship protect highly personal rights, the First Amendment’s guarantee of the right “of the people peaceably to assemble,” protects the right of association. These are the rights of the people as a community to join together to achieve certain political, social, economic, artistic, educational, or other goals. For the Court, interpreting the right to assemble has been even more difficult than construing other aspects of the First Amendment, because by its very nature, assembly involves both speech and conduct. At first blush, the First Amendment has nothing to do with conduct. However, when the Court is confronted with cases involving public demonstrations, protests, parades, and picketing, it is apparent that these activities are intended to send a message—and communicating messages is clearly protected by the First Amendment. However, blocking traffic, littering the streets, or physically obstructing others from going about their business is not protected by the First Amendment. Consequently, when it comes to freedom of assembly, the Court has used a balancing test, seeking first to determine whether the law regulating assembly is in fact a ruse to suppress a particular viewpoint, and if not, whether the law serves a compelling state interest unrelated to the suppression of free speech. For example, in 1940 in Thornhill v. Alabama, the Court struck down a state law that prohibited all picketing. Although the First Amendment does not afford an absolute right to picket, the Court overturned the statute because instead of regulating specific aspects of labor demonstrations, it prohibited “every practicable method whereby the facts of a labor dispute may be publicized.” Closely aligned with freedom of assembly is freedom of association or the right of the people to form and join organizations in order to educate themselves and influence public policy on important issues of the day. Even during the hysteria of the Cold War in the 1950’s, the Court held in Yates v. United States (1957) that when membership in the Communist Party involved nothing more than the advocacy or teaching of the abstract doctrine of the forcible overthrow of the government (as con-

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trasted with the advocacy or teaching of direct action to achieve that end) convictions under the Smith were unconstitutional. In 1958, in National Association for the Advancement of Colored People v. Alabama, the Court found that the forced disclosure of an organization’s membership list violated the members’ rights to pursue their lawful interests and to freely associate with like-minded persons. Although freedom of association is not expressly set forth anywhere in the Constitution, the Court nevertheless found freedom of association to be an integral part of the First Amendment. The Right to Petition the Government. The least controversial (and least litigated) right in the First Amendment is the right “to petition the government for redress of grievances.” Aside from a doomed attempt in 1836 by the House of Representatives to impose a gag rule against the receipt of petitions from abolitionists who opposed slavery, Congress has not had the temerity to even attempt to restrict this quintessential right to write to your Congressperson, thereby sparing the Court the task of striking down such legislation. Further Reading Steven H. Shiffrin and Jesse H. Choper’s The First Amendment: Cases, Comments, Questions (St. Paul, Minn.: West Publishing, 1996) provides a basic introduction to the First Amendment. The First Amendment: The Legacy of George Mason (London: Associated University Presses, 1985), edited by T. Daniel Shumate, focuses on the origin and meaning of the amendment. Louis E. Ingelhart’s Press and Speech Freedoms in the World, from Antiquity Until 1998: A Chronology (Westport, Conn.: Greenwood Press, 1998) covers the concept of freedom of speech and press from ancient times until the modern period, and Margaret A. Blanchard’s Revolutionary Sparks: Freedom of Expression in Modern America (New York: Oxford University Press, 1992) covers the concept from the beginning to the end of the twentieth century. The First Amendment and the freedoms of association and assembly are examined in Freedom of Association (Princeton, N.J.: Princeton University Press, 1998), edited by Amy Gutmann, and Paul L. Murphy’s Rights of Assembly, Petition, Arms, and Just Compensation (New York: Garland, 1990). The First Amendment and religion are examined in Toward Benevolent Neutrality: Church, State, and the Supreme Court, edited by Ronald B. Flowers and Robert T. Miller (Waco, Tex.: Baylor University Press, 1998), The Believer and the Powers That Are: Cases, History, and Other Data

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Bearing on the Relation of Religion and Government, by John Thomas Noonan, Jr. (New York: Macmillan, 1987), and Religious Liberty in the Supreme Court: The Cases That Define the Debate over Church and State, edited by Terry Eastland (Grand Rapids, Mich.: Wm. B. Eerdmans, 1995). Stephen F. Rohde

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SECOND AMENDMENT Description: Amendment that provided the right of people to keep and bear arms. (The full text of the Second Amendment appears in this volume on page 391.) Significance: The Supreme Court’s rare decisions on the Second Amendment have typically been narrowly drawn, leaving the broad issues of gun control and the intent of the Second Amendment unresolved. The Second Amendment to the U.S. Constitution states: “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.” In comparison to other controversial constitutional guarantees, such as freedom of speech, the Supreme Court has had little to say about the Second Amendment. The Court has generally upheld criminal laws regarding firearms, but it has done so without attempting to establish a guiding interpretation of the amendment. Although the Court overturned two federal gun laws in two decisions during the 1990’s, it did not rule on the laws as they pertained to the Second Amendment. Rather, in keeping with the Court’s states’ rights conservatism under Chief Justice William H. Rehnquist, the Court ruled on the laws as they pertained to the limits of the federal government’s power to impose its laws on state and local authorities. In Printz v. United States (1997), Jay Printz, the sheriff of Ravalli County, Montana, challenged a federal law that required him to perform background checks on people in his jurisdiction who sought to buy guns. The Court accepted his argument that the federal government may not compel the states to implement federal regulations, overturning the portion of the federal act that required local law enforcement agencies to conduct background checks. Before that, United States v. Lopez (1995) reached the Court after a student, Alfonso Lopez, was charged with violating the Gun-Free School Zones Act of 1990 when he carried a concealed handgun into a high school. The Court upheld an appellate ruling that the federal act exceeded the authority of Congress to legislate under the interstate commerce clause. To allow the act to stand, the Court wrote, would “require this Court to pile inference upon inference in a manner that would bid fair to convert congressional commerce clause authority to a general police power of the sort held only by the States.” Printz and Lopez did not address the Second Amendment or rule

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on how it is to be interpreted. Nor is the controversy settled by a review of Court decisions touching on the Second Amendment. Early Decisions. In United States v. Cruikshank (1876), William Cruikshank, a member of the Ku Klux Klan, was tried in federal court for violating the federal civil rights laws protecting the African American victims of a murderous riot he led. The trial court found Cruikshank guilty of conspiring to deprive African Americans of their right to bear arms. The Supreme Court, however, ruled in favor of Cruikshank, arguing that the Second Amendment applied only to Congress and that people must look to local governments for protection against violations of their rights. The Cruikshank decision, like the Slaughterhouse Cases (1873), interpreted against use of the Fourteenth Amendment as a means to enforce the Bill of Rights at the state and local level. This interpretation of the Fourteenth Amendment, however, has since been abandoned in other decisions not relating to the Second Amendment. The next major Second Amendment case was Presser v. Illinois (1886). Herman Presser led an armed group called the Lehr und Wehr Verein (Educational and Protective Association) on a march through the streets of Chicago. Presser argued that the Illinois law under which he was convicted was superseded by various provisions of federal law, including the Second Amendment. The Court upheld his conviction, arguing that to accept Presser’s interpretations would amount to denying the rights of states to disperse mobs. Indications of Ambivalence. The Court in United States v. Miller (1939) upheld the federal regulation against a shotgun’s having a barrel less than eighteen inches long on the basis that the Court had no indication that such a weapon “was . . . ordinary military equipment or . . . could contribute to the common defense.” It may be argued, therefore, that Miller indirectly defends the principle that a firearm that has some reasonable relationship to the efficiency of a well-regulated militia is protected by the Constitution. However, challenges to laws limiting civilian possession of machine guns and assault rifles, which are military weapons, have not met with success. A similar ambivalence can be inferred in Cases v. United States (1943), in which a lower court noted, “apparently . . . under the Second Amendment, the federal government can limit the keeping and bearing of arms by a single individual as well as by a group . . . but it cannot prohibit the possession or use of any weapon which has any reason-

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able relationship to the preservation or efficiency of a well-regulated militia.” The Court made this observation, however, when declining to review a challenge to a provision of the Federal Firearms Act. In Quilici v. Village of Morton Grove (1983), a circuit court refused to review a Second Amendment case and let stand a decision upholding an ordinance in Morton Grove, Illinois, banning possession of handguns. This decision has been cited to bolster the argument that the individual ownership of firearms is not a constitutional right, but the fact that the Court has done nothing to change the existing laws that allow individual possession of firearms undermines such an argument. Further Reading Bijlefeld, Marjolijn, ed. The Gun Control Debate: A Documentary History. Westport, Conn.: Greenwood Press, 1997. Cottrol, Robert J., ed. Gun Control and the Constitution: Sources and Explorations on the Second Amendment. New York: Garland, 1993. Halbrook, Stephen P. That Every Man Be Armed: The Evolution of a Constitutional Right. Albuquerque: University of New Mexico Press, 1984. Henigan, Dennis A. Guns and the Constitution: The Myth of Second Amendment Protection for Firearms in America. Northampton, Mass.: Aletheia Press, 1996. Malcolm, Joyce Lee. To Keep and Bear Arms: The Evolution of an AngloAmerican Right. Cambridge, Mass.: Harvard University Press, 1996. Eric Howard

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THIRD AMENDMENT Description: Amendment that denies quarter in private homes to soldiers during times of peace. (The full text of the Third Amendment appears in this volume on page 391.) Significance: Contemporary use of the amendment by the Supreme Court has been simply as a reference exemplifying constitutional protections of property-based privacy rights against certain governmental intrusions. The last time the Third Amendment had serious literal application was during the Civil War (1861-1865), when property owners were made to house, feed, and generally support both Union and Confederate soldiers. Today, such literal application is rare. However, in Engblom v. Carey (1982), a federal appellate court held that striking corrections officers had a lawful interest in their living quarters, located at the prison and provided in the course of their employment, which entitled them to a legitimate expectation of privacy protected by the Third Amendment. For development of privacy rights, the Supreme Court usually relied on provisions of other amendments such as the Fourth Amendment protection against unreasonable search and seizure and used the Third Amendment simply as a nominal reference to general constitutional protections. For example, in a footnote to Katz v. United States (1967), a landmark decision regarding Fourth Amendment privacy rights, Justice Potter Stewart merely listed the Third Amendment in his enumeration of constitutional protections. This contemporary reliance is typified by State v. Coburn (1974), in which the Montana supreme court cited the First, Third, Fourth, and Fifth Amendments as the “umbrella of constitutional protections” afforded individual privacy. Michael J. Garcia

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FOURTH AMENDMENT Description: Amendment that protects people against unreasonable searches and seizures. (The full text of the Fourth Amendment appears in this volume on page 391.) Significance: In the early 1900’s the Supreme Court began expanding the applications of the Fourth Amendment, balancing the rights of the accused against the safety of other people. The framers of the Bill of Rights were concerned with the old English practice of issuing general warrants and writs of assistance. These two legal tools authorized searches with few stipulations on searching agents, allowing searches day or night on bare suspicion. Authorized by the monarch, they were valid for the duration of his or her lifetime. They were not required to name a specific person or place but could be stated in more general terms. No oath before a magistrate was necessary to secure a warrant, and probable cause was not required. Everything was left to the discretion of the holder of the warrant. The result was harassment. The colonists were victims of these general warrants and writs of assistance and purposely set out to outlaw them. James Madison revised his initial draft of the Fourth Amendment, changing the word “secured” to “secure” and adding the clause “against unreasonable searches and seizures.” Although Madison’s goal was to eliminate general warrants and writs of assistance, scholars believe these alterations made the meaning of the amendment ambiguous. The Fourth Amendment outlaws only unreasonable searches and seizures, logically allowing those deemed reasonable. The framers envisioned that searches conducted with a warrant, which required specifics such as who is to be searched, what is to be seized, and when, were constitutionally permissible. The warrant clause stipulated what was expected of police when conducting searches. However, left unanswered were the questions of whether there are times when it is reasonable to search without a warrant, what constitutes probable cause, and whether the amendment restricts only police or other governmental agents with searching authority. The Court in Wolf v. Colorado (1949) made clear that search warrants had to be supported by probable cause and issued by a neutral and impartial magistrate. However, often searches are conducted without a search warrant.

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Exceptions to the Warrant Requirement. The Court created a number of exceptions to the search warrant requirement. Using the reasonableness clause of the amendment rather than the warrant provision, the Court rejected the idea of a bright-line rule in favor of a more fact-bound, case-bycase approach. The police do not need a warrant for searches incident to arrest; stop and frisk situations; when illegal or stolen items are in plain view during a legal search; administrative, consensual, and border searches; and searches involving exigent circumstances such as automobile searches. When an individual is arrested on probable cause, a police officer is permitted to conduct a warrantless search of the person. This exception to the warrant requirement, search incident to arrest, rests on the understanding that the arresting officer must have the power to disarm the accused and preserve any evidence. Protecting the officer’s safety and retaining probative evidence is reasonable. The officer may search not only the person but the areas of immediate control. In Chimel v. California (1969), the Court reasoned that the scope of a search incident to arrest included wherever the arrestee might reach to grab a weapon or piece of evidence. If in the course of a valid search, an officer comes on stolen or illegal items in plain view, they may be seized and used as evidence. This inadvertent windfall is permissible and reasonable under the Fourth Amendment as long as the officer happens on the evidence in the course of conducting a legal search. Related is the plain feel exception. In Minnesota v. Dickerson (1993), the Court held that if an officer feels what seems to be contraband or evidence of a crime when patting down the outside of a suspect’s clothing, the items can be seized. In Terry v. Ohio (1968), the Court allowed for searches on the street that did not meet the standard of probable cause. In this case, it upheld the brief detention of a suspect for weapons on the grounds of reasonable suspicion rather than probable cause. Only a limited frisk was permitted with the lowered standard of cause. If the pat-down yielded a basis for an arrest, however, a full search incident to arrest could follow. The Court has applied the Fourth Amendment to the increasing problems arising in a mobile society. Planes, buses, trains, and boats all raise exigency concerns because of the highly mobile nature of the place to be searched and the futility of the police in executing search warrants on moving objects. The most common exigent circumstance is created by the automobile. As early as 1925 in Carroll v. United States, the Court made

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clear that the automobile would not be afforded the same level of privacy rights protection as an individual’s home or person. Stopping an automobile and searching it on the street without a warrant was reasonable. However, the particulars of the car have generated a volume of litigation aimed at answering questions such as whether the police can lawfully open the glove box, the trunk, or containers in the automobile or search the driver, passengers, and their personal items. Given the lower expectation of privacy in automobiles, the Court in Michigan Department of State Police v. Sitz (1990) allowed roadblocks to briefly stop all drivers to catch those driving under the influence of drugs and alcohol. Employees of other governmental agencies, such as housing, fire, health, welfare, and safety inspectors, also have searching capabilities. These agents have a lesser standard than probable cause and often invoke an element of surprise, such as unannounced inspections of restaurants. Related to these types of searches are those to ensure safety in the workplace or school by drug-testing employees and students. In National Treasury Employees Union v. Von Raab (1989), the Court upheld suspicionless mandatory urinalysis testing for promotion on the grounds of safety (the employees would have access to firearms and secure information). By 1995 in Vernonia School District v. Acton, the Court upheld the right to drug-test all student athletes without requiring suspicion of individuals. The courts have long recognized that individuals and items entering the United States may be searched at the international border without warrant or probable cause. The Court has placed some limits on these searches, such as the level of intrusion. Strip searches, for example, must be justified by real suspicion. In an attempt to stop the influx of illegal drugs, law enforcement developed the drug courier profile, a composite of variables that indicates the likelihood an individual is trafficking drugs. In United States v. Sokolow (1989), the Court upheld the use of the profile as a basis for detaining and searching individuals both at the border and within the continental United States. In Schneckloth v. Bustamonte (1973), the Court acknowledged the use of consent searches, noting that individuals may waive their Fourth Amendment rights and allow a search without a warrant or probable cause. The key to the validity of such searches is that they must be voluntary; an individual must knowingly and freely consent to be searched. The waiver must be uncoerced, given without trickery or fear or promise of reward. Consent can be withdrawn at any time, and a refusal to give consent cannot then be used to establish probable cause.

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The Fourth Amendment also applies to wiretapping and other forms of police surveillance. The Court in Katz v. United States (1967) reasoned that a person’s expectation of privacy includes the seizure of intangible items such as words. Exclusionary Rule. The Fourth Amendment describes the right to be secure against unreasonable searches and seizures without mentioning a remedy. The common-law remedy for search and seizure violations was a suit of trespass. This was used until Weeks v. United States (1914) when the Court adopted the exclusionary rule, which excludes illegally seized evidence from trials. The twofold purpose of the rule is to preserve the integrity of the judiciary and deter police misconduct. Weeks mandated the application of the exclusionary rule to searching agents of the federal government. In 1949 in Wolf v. Colorado, the Court incorporated the Fourth Amendment, thereby requiring states not to abridge the search and seizure rights of their citizens, yet allowing them to choose the remedy. This choice was eliminated in Mapp v. Ohio (1961) when the Court incorporated the remedy of exclusion from trials for all Fourth Amendment violations, by either state or federal officials. Mapp’s scope was limited by the Court. In Linkletter v. Walker (1965), the Court refused to apply the exclusionary rule retroactively. The exclusion remedy was limited in scope so that it did not include grand jury proceedings in United States v. Calandra (1974). The Court ruled in United States v. Havens (1980) that illegally seized evidence could be used to impeach the credibility of the defendant at trial and in Nix v. Williams (1984) that it could also be admitted into evidence if the police would have inevitably discovered the evidence by lawful means. In 1984 in United States v. Leon and Massachusetts v. Sheppard, the Court allowed the use of illegally obtained evidence if the police error was made in objective good faith. The Court was unwilling to exclude reliable probative evidence when the error made by the police was unintentional and made in the course of attempting to follow the law. Further Reading One of the better historical treatments of the Fourth Amendment is Nelson B. Lasson’s The History and Development of the Fourth Amendment to the United States Constitution (Baltimore, Md.: Johns Hopkins University Press, 1937). Several classic and often cited works about the Fourth Amendment are Jacob W. Landynski’s Search and Seizure and the Supreme Court

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(Baltimore, Md.: Johns Hopkins University Press, 1966), Wayne LaFave’s Search and Seizure: A Treatise on the Fourth Amendment (Mineola, N.Y.: Foundation Press, 1978), Erwin N. Griswold’s Search and Seizure: A Dilemma of the Supreme Court (Lincoln: University of Nebraska Press, 1975), and Telford Taylor’s Two Studies in Constitutional Interpretation (Columbus: Ohio State University Press, 1969). A general treatment of Fourth Amendment rights can be found in David M. O’Brien’s Constitutional Law and Politics: Civil Rights and Liberties. 3d ed. 2 vols. New York: W. W. Norton, 1997. Some law review articles debating the policy implications of the Fourth Amendment and its remedy are Anthony Amsterdam’s “The Supreme Court and the Rights of Suspects in Criminal Cases,” New York University Law Review 45 (1970): 785, Yale Kamisar’s “Is the Exclusionary Rule an ‘Illogical’ or ‘Unnatural’ Interpretation of the Fourth Amendment?” Judicature 62 (1978): 67, and Malcolm Wiley’s “Constitutional Alternatives to the Exclusionary Rule,” South Texas Law Journal 23 (1982): 531. Warren E. Burger expressed his views on the Fourth Amendment in “Who Will Watch the Watchman?” American University Law Review 14 (1964): 1. Priscilla H. Machado

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FIFTH AMENDMENT Description: Amendment that provides a right to avoid self-incrimination, a right to a grand jury indictment in capital or infamous crime cases, a right to be free from double jeopardy, and a right to just compensation for property taken by the government. (The full text of the Fifth Amendment appears in this volume beginning on page 391.) Significance: The Supreme Court has used the Fifth Amendment to protect citizens against government coercion. The Fifth Amendment includes more than just a right against selfincrimination, yet it is virtually synonymous with the right against selfincrimination. This right reflected the framers’ judgment that in a society based on respect for the individual, the government shouldered the entire burden of proving guilt and the accused need make no unwilling contribution to his or her conviction. The Fifth Amendment is restricted on its face to “criminal cases.” However, the Supreme Court ruled that the Fifth Amendment applies to criminal and civil cases and extends to nonjudicial proceedings, such as legislative investigations and administrative hearings. The protection of the clause extends only to people, not organizations such as corporations or unions, and is applicable to witnesses as well as to the accused. The self-incrimination clause is violated if evidence compelled by the government incriminates the person who provides it. Given these standards, self-incrimination violations occur most commonly during police interrogations and government hearings. Although the purpose of the clause is to eliminate the inherently coercive and inquisitional atmosphere of the interrogation room, a person may voluntarily answer any incriminating question or confess to any crime, subject to the requirements for waiver of constitutional rights, even if his or her statements are intended as exculpatory but lend themselves to prosecutorial use as incriminatory. A Definition. The Court first addressed the meaning of the selfincrimination clause in Twining v. New Jersey (1908). The question was whether the right against self-incrimination was “a fundamental principle of liberty and justice which inheres in the very idea of free government” and therefore should be included within the concept of due process of law safeguarded from state abridgment. The Court decided

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against the right. It reaffirmed this position in Palko v. Connecticut (1937), in which the Court held that the right against compulsory selfincrimination was not a fundamental right; it might be lost, and justice might still be done if the accused “were subject to a duty to respond to orderly inquiry.” The Court abandoned this position in its 1966 decision in Miranda v. Arizona, a tour de force on self-incrimination. The opinion announced a cluster of constitutional rights for defendants held in police custody and cut off from the outside world. The atmosphere and environment of incommunicado interrogation was held to be inherently intimidating and hostile to the privilege against self-incrimination. To prevent compulsion by law enforcement officials, before interrogation, people in custody must be clearly informed that they have the right to remain silent and anything they say may be used in court against them and that they have the rights to consult an attorney, to have a lawyer present during interrogation, and to have a lawyer appointed if they are indigent. When Chief Justice Warren E. Burger replaced Chief Justice Earl Warren in 1964 and Justice Harry A. Blackmun replaced Justice Abe Fortas in 1970, they joined Justices Byron R. White, John Marshall Harlan II, and Potter Stewart in support of a narrow application of Miranda. These five justices constituted the majority in Harris v. New York (1971), indicating the beginning of a contracting trend for Miranda. Chief Justice Burger held that the prosecution is not precluded from the use of statements that admittedly do not meet the Miranda test as an impeachment tool in attacking the credibility of an accused’s trial testimony. The erosion of Miranda continued in several rulings in the 1970’s. In Michigan v. Tucker (1974), the Court held that failure to inform a suspect of his or her right to appointed counsel before interrogation was only a harmless error in the total circumstances of the case. Then one year later in Oregon v. Haas (1975), the Court reaffirmed Harris and allowed the use of a suspect’s statements for impeachment purposes though they had been made before arrival of counsel that he had requested before making any statements. And the next year in Michigan v. Mosley (1976), the Court did not construe Miranda as invoking a “proscription of indefinite duration on any further questionings . . . on any subject.” This ruling approved an interrogation process in which a suspect had initially used the shield of Miranda rights to remain silent but several hours later in a different room was administered the Miranda rights again and proceeded to respond to questions about a different crime.

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By the mid-1980’s it was clear that the Court under Chief Justice William H. Rehnquist would continue to construe Miranda very narrowly. In New York v. Quarles (1984), for example, the Court held that when a danger to public safety exists, police may ask questions to remove that danger before reading Miranda warnings. Answers given to the police may be used as evidence. In Illinois v. Perkins (1990), the Court ruled that Miranda warnings are not required when a suspect is unaware he or she is speaking to the police and gives a voluntary statement. The case concerned a jailed defendant who implicated himself in a murder when talking to an undercover agent placed in his cell. Justice Anthony M. Kennedy wrote in the opinion, “Miranda forbids coercion, not mere strategic deception.” Finally, in Arizona v. Fulminante (1991), the Court admitted that the defendant’s confession was coerced by the threat of physical attack. However, the Court held that if such testimony is erroneously admitted as evidence, a conviction need not be overturned if sufficient independent evidence supporting a guilty verdict is also introduced. At the turn of the century, the Court’s decision to maintain the precedent with continued narrow application of Miranda appeared well entrenched. The majority of the justices appeared to be comfortable with that approach, and changes appeared unlikely. Double Jeopardy Clause. Also under the Fifth Amendment, a person shall not be subject “for the same offense to be twice put in jeopardy of life or limb.” The underlying premise of the double jeopardy clause is to prohibit the government from making repeated attempts to convict an individual. Acquittal acts as an absolute bar on a second trial. The meaning of acquittal, however, often divides the Court. The Court ruled that there is no double jeopardy in trying someone twice for the same offense if the jury is unable to reach a verdict—in United States v. Ball (1896), the jury is discharged—in Logan v. United States (1892), or an appeals court returns the case to the trial court because of defects in the original indictment—in Thompson v. United States (1894). The Court also unanimously ruled in three cases—Jerome v. United States (1943), Herbert v. Louisiana (1926), and United States v. Lanza (1922)— that a person may be prosecuted for the same act under federal law and state law. The theory is that the person is being prosecuted for two distinct offenses rather than the same offense. The double jeopardy clause also prohibits prosecutors from trying de-

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fendants a second time for the express purpose of obtaining a more severe sentence. However, in 1969 the Court decided that there is no constitutional bar to imposing a more severe sentence on reconviction (after the first conviction is thrown out), provided the sentencing judge is not motivated by vindictiveness. In North Carolina v. Pearce; Chaffin v. Stynchcombe (1973), it ruled that the guarantee against double jeopardy requires that punishment already exacted must be fully credited to the new sentence. The double jeopardy clause also bars multiple punishments for the same offense. In United States v. Ursery (1996) and Kansas v. Hendricks (1997), the Court narrowly construed this right. The latter case involved a challenge to a statute that permitted the state to keep certain sexual offenders in custody in a mental institution after they had served their full sentence. The Court ruled that the civil confinement was not a second criminal punishment but a separate civil procedure, thus not a violation of the double jeopardy clause. Right to a Grand Jury. The Fifth Amendment also provides that “no person shall be held for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger.” The grand jury procedure is one of the few provisions in the Bill of Rights that has not been incorporated into the due process clause of the Fourteenth Amendment and applied to the states. Instead the Court ruled that states may prosecute on a district attorney’s “information,” which consists of a prosecutor’s accusation under oath in Hurtado v. California (1884) and Lem Wood v. Oregon (1913). The Court held in Costello v. United States (1956) that, unlike in a regular trial, grand juries may decide that “hearsay” evidence is sufficient grounds to indict. In 1992 the Court issued an opinion in United States v. Williams (1992) indicating that an otherwise valid indictment may not be dismissed on the ground that the government failed to disclose to the grand jury “substantial exculpatory evidence” in its possession. In 1974 the Court decided in United States v. Calandra that witnesses before a grand jury may invoke the Fifth Amendment privilege against self-incrimination. This privilege is overridden if the government grants immunity to the witness. Witnesses who then refuse to answer questions may be jailed for contempt of court. Witnesses may not refuse to answer because questions are based on illegally obtained evidence.

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The Takings Clause. Finally, the Fifth Amendment provides that private property shall not “be taken for public use, without just compensation.” This is referred to as the takings clause, or the just compensation clause. The Court incorporated the takings clause under the due process clause of the Fourteenth Amendment in Chicago, Burlington, and Quincy Railroad Co. v. Chicago (1897); therefore, states are also forbidden from taking private property for public use without just compensation. Not every deprivation of property requires compensation, however. For example, the Court held in United States v. Caltex (1952) that under conditions of war, private property may be demolished to prevent use by the enemy without compensation to the owner. When compensation is to be paid, a plethora of 5-4 decisions by the Court—including United States v. Fuller (1973) and Almota Farmers Elevator and Wholesale Co. v. United States (1973)—demonstrate fundamental disagreements among the justices about the proper method of calculating what is “just.” Court decisions in the early and mid-1990’s underscore the complexity and reach of the takings clause. Several cases broadened the powers of the states, and others expanded property rights. In Yee v. Escondido (1992), a unanimous Court held that a rent-control ordinance did not amount to a physical taking of the property of owners of a mobile home park. A more significant ruling, Lucas v. South Carolina Coastal Council (1992), narrowed the rights of states to rely on regulatory takings that completely deprive individuals of the economic use of their property. To be exempt from compensating a property owner, a state must claim more than a general public interest or an interest in preventing serious public harm. The Court broadened property rights by holding that land use requirements may be “takings.” The decision in Dolan v. City of Tigard (1994) dealt with the practice of local governments giving property owners a permit for building a development only on the condition that they donate parts of their land for parks, bike paths, and other public purposes. These conditions are valid only if the local government makes “some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development.” This 5−4 decision underscores the Court’s inability to reach agreement on constitutional principles under the Fifth Amendment. Further Reading Two general works on the Fifth Amendment are Harvey Fireside’s The Fifth Amendment: The Right to Remain Silent (Springfield, N.J.: Enslow,

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1998) and Burnham Holmes’s The Fifth Amendment (Englewood Cliffs, N. J.: Silver Burdett Press, 1991). David Bodenhamer’s Fair Trial: Rights of the Accused in American History (New York: Oxford University Press, 1992) presents a useful account of double jeopardy and self-incrimination rights. Also recommended is Anthony Lewis’s Gideon’s Trumpet (New York: Vintage, 1964). A well-written and thorough account of the takings clause is found in Richard Epstein’s Takings: Private Property and the Power of Eminent Domain (Cambridge, Mass.: Harvard University Press, 1985). A more scholarly account is James Ely’s The Guardian of Every Other Right: A Constitutional History of Property Rights (New York: Oxford University Press, 1992). Susan L. Thomas

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SIXTH AMENDMENT Description: Amendment that specifies the trial rights possessed by criminal defendants. (The full text of the Sixth Amendment appears in this volume on page 392.) Significance: Beginning in the 1960’s, the Supreme Court actively interpreted and defined the provisions of the Sixth Amendment to ensure that criminal defendants receive their protected entitlements in both federal and state courts. The Sixth Amendment, added to the U.S. Constitution in 1791, specifies the rights of defendants in the trial stage of the criminal law process, including the rights to a speedy and public trial, an impartial jury in the locale where the alleged crime was committed, information about the nature of charges being prosecuted, an opportunity to confront accusers and adverse witnesses, a compulsory process for obtaining favorable witnesses, and the assistance of counsel. For most of U.S. history, the Sixth Amendment and other provisions of the Bill of Rights protected individuals against actions by the federal government only. However, during the twentieth century, the Supreme Court ruled that many provisions of the Bill of Rights, including the Sixth Amendment, also applied to state and local governments. Therefore, defendants in all criminal prosecutions came to benefit from the protections afforded by the Sixth Amendment. Right to Counsel. Before the twentieth century, the right to counsel provided by the Sixth Amendment simply meant that the government could not prevent a criminal defendant from hiring an attorney when the defendant could afford to do so. Defendants who lacked the necessary funds were required to defend themselves in court without professional assistance. The Court first expanded the right to counsel in Powell v. Alabama (1932). Powell, also known as the Scottsboro case, involved several African American defendants who were accused of raping two white women. The young men were convicted and sentenced to death in a quick trial without being represented by any attorneys. The case was heard at a time when African Americans were subjected to significant racial discrimination in the legal system, especially in southern states. There were trou-

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bling questions about the defendants’ guilt, particularly after one of the alleged victims later admitted that she lied about what happened. Given the circumstances, the Court found the legal proceedings to be fundamentally unfair and declared that defendants facing the death penalty were entitled to representation by attorneys. The Court expanded the right to counsel in Johnson v. Zerbst (1938) by declaring that all defendants facing serious charges in federal court are entitled to be provided with an attorney when they are too poor to afford to hire their own. The Court expanded this rule to cover all state and local courts in Gideon v. Wainwright (1963), a well-known case initiated by an uneducated prisoner who sent the Court a handwritten petition complaining about a judge denying his request for an attorney. In Douglas v. California (1963), the Court declared that the government must supply attorneys for poor defendants for their first appeal after a criminal conviction. Subsequently, the Court ruled in Argersinger v. Hamlin (1972) that regardless of the seriousness of the charges, criminal defendants are entitled to be represented by an attorney if they face the possibility of serving time in jail. Because people who possess the necessary funds are expected to hire their own attorneys, the Court’s Sixth Amendment decisions primarily protected poor defendants who would not receive professional representation if it were not provided by the government. Although the Court expanded opportunities for poor defendants to receive representation during criminal trials, the right to counsel does not apply to civil trials or to cases pursued by prisoners after they have presented their first postconviction appeal. Trial by Jury. The Court did not interpret the Sixth Amendment to apply the right to trial by jury to all serious cases in both state and federal courts until 1968. In Duncan v. Louisiana (1968), the Court overturned the conviction of an African American defendant whose request for a jury trial had been denied when he was convicted and sentenced to sixty days in jail for allegedly slapping a white man on the arm. After the conviction was overturned, the federal courts prevented Louisiana from prosecuting the man again because he and his attorney had been subjected to discrimination and harassment by local law enforcement officials during the course of his arrest and trial. The right to trial by jury does not, however, apply to all criminal cases. In Lewis v. United States (1996), the Court ruled that the Sixth Amendment right to a jury trial does not apply to defendants facing petty offense

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charges with six months or less of imprisonment as the possible punishment for each charge. Therefore, defendants may be denied the opportunity for a jury trial if they face multiple petty offenses that, upon conviction, could produce cumulative sentences in excess of six months through separate sentences for each charge. Such defendants are entitled to a trial, but the trial will be before a judge rather than a jury. In its early decisions, the Court expected that juries would be made up of twelve members who reach unanimous verdicts. However, the Court’s interpretation of the Sixth Amendment changed during the 1970’s. In Williams v. Florida (1970), the Court determined that juries could have as few as six members in criminal cases. In Apodaca v. Oregon (1972), the Court declared that states could permit defendants to be convicted of crimes by less than unanimous jury verdicts. It ruled that Oregon could convict defendants with 10-2 jury votes and Louisiana with 9-3 votes. The right to trial by jury is not implemented in identical fashion in all courts throughout the country. Other Trial Rights. The Sixth Amendment’s right to a speedy trial prevents the government from holding criminal charges over a defendant’s head indefinitely without ever pursuing prosecution. People are entitled to have charges against them resolved in a timely manner. Because the Sixth Amendment provides no guidance on how long the government may take in pursuing prosecution, the Court had to establish guidelines through its Sixth Amendment rulings. The Court clarified the right to a speedy trial in Barker v. Wingo (1972), in which a defendant was forced to wait for more than five years for a trial after he was charged with murder. The delay occurred because the prosecution sought to convict a codefendant first but the codefendant’s appeals led to orders for new trials. Therefore, it took several trials to obtain an error-free conviction of the codefendant. When the Court examined the claim that a five-year delay constituted a violation of the Sixth Amendment right to a speedy trial, the Court refused to set a firm time limit for speedy trials. Instead, the Court said the individual circumstances of each case must be examined. The Court ruled that judges must determine whether the right to a speedy trial was violated by considering four aspects of the delay: its length, the reason for it, whether the defendant complained about the delay, and whether it harmed the defendant’s case, such as through the death or disappearance of a key witness. In this case, the Court found that because the defendant never complained about the delay and his case

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was not disadvantaged by the delay, the five-year wait for a trial did not violate the defendant’s rights despite the fact that the prosecution caused the lengthy delay. Although the Court clarified the factors to be considered in evaluating a speedy trial claim, the exact nature of the right was not clearly defined. The defendant’s right to confront adverse witnesses is intended to prevent the government from holding trials without the defendant’s knowledge or declaring the defendant guilty without permitting the defendant to challenge the prosecution’s evidence. The adversary system underlying the U.S. criminal law process presumes that the best way to reveal the truth at a trial is to permit both sides to present their evidence and arguments to the judge and jury during the same proceeding. The Court struggled with its attempts to provide a clear definition of the extent of the confrontation right. For example, in Coy v. Iowa (1988), the justices were deeply divided when they decided that it was not permissible for the state to place a screen in the courtroom to prevent a defendant from having eye contact with child victims who were presenting testimony about an alleged sexual assault. A few years later in Maryland v. Craig (1990), a narrow majority of justices approved the use of closedcircuit television to permit child victims to present testimony from a different room in the courthouse than the courtroom in which the trial was taking place. Thus the defendant could see the witnesses on television, but the children would not risk being traumatized by coming face to face with the person accused of committing crimes against them. The significant disagreements among the justices about the right to confrontation indicate that the Court may need to clarify the circumstances in which it is permissible to use devices to separate defendants from direct contact with witnesses testifying against them. Traditionally, defendants and witnesses were expected to be face to face in the same courtroom, but growing sensitivity to the psychological trauma experienced by crime victims who must testify in court has led to experiments with screens, closedcircuit television, and other techniques that collide with traditional conceptions of the right to confrontation. Other Sixth Amendment issues to come before the Court include whether excessive pretrial publicity prevents the selection of an unbiased jury and in what circumstances judicial proceedings can be closed to the public. When addressing these issues, Court justices tend to focus on their assessment of factors and circumstances that may interfere with a criminal defendant’s opportunity to receive a fair trial.

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Further Reading The development of trial rights is presented in Francis Heller’s The Sixth Amendment to the Constitution of the United States (New York: Greenwood Press, 1951). Many landmark Sixth Amendment cases are presented in case studies examining the people and social contexts surrounding them. Of particular note are Anthony Lewis’s Gideon’s Trumpet (New York: Random House, 1964) concerning Gideon v. Wainwright and James Goodman’s Stories of Scottsboro (New York: Random House, 1994) concerning Powell v. Alabama. Alfredo Garcia’s The Sixth Amendment in Modern American Jurisprudence (New York: Greenwood Press, 1992) presents a discussion of the modern Court’s decisions affecting the Sixth Amendment. A detailed presentation of the fine points of law concerning trial rights is available in Charles Whitebread and Christopher Slobogin’s Criminal Procedure (3d ed., Mineola, N.Y.: Foundation Press, 1993). For an examination of the Court’s decision making after the 1950’s and the viewpoints of individual justices concerning the Sixth Amendment, see Thomas R. Hensley, Christopher E. Smith, and Joyce A. Baugh’s The Changing Supreme Court: Constitutional Rights and Liberties (St. Paul, Minn.: West Publishing, 1997). A liberal critique of the Rehnquist Court’s decisions affecting the criminal law process is presented in John Decker’s Revolution to the Right (New York: Garland, 1992), which argues that the Supreme Court has diminished the protections of the Sixth Amendment and other rights with respect to criminal defendants. Christopher E. Smith

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SEVENTH AMENDMENT Description: Amendment that guaranteed the right to a jury trial in civil common law cases at the federal level. (The full text of the Seventh Amendment appears in this volume on page 392.) Significance: The Supreme Court has interpreted this amendment to allow civil juries of six rather than twelve people but has not applied it to civil trials in state courts. The Seventh Amendment was ratified in 1791. It guaranteed the right to trial by jury in federal civil cases. The amendment was designed to preserve the common law distinction between issues of law and issues of fact. In Baltimore and Carolina Line v. Redman (1935), the Court held that the judge should remain the trier of law, deciding unresolved issues of law, and the jury should remain the trier of fact, resolving issues of fact under appropriate instructions by the court. The amendment’s guarantee applies to all courts under the authority of the United States, including territories and the District of Columbia. Generally, the amendment does not apply to state courts, except when the state court is enforcing a federally created right. When a federal court is enforcing a state-created right, it may follow its own rules based on the interests of the federal court system. In Colgrove v. Battin (1973), the Court held that a federal district court’s authorization of civil juries composed of six persons instead of the traditional twelve was permissible under the Seventh Amendment. Patricia Jackson

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EIGHTH AMENDMENT Description: Amendment that forbids requiring excessive bail, imposing excessive fines, and inflicting cruel and unusual punishments. (The full text of the Eighth Amendment appears in this volume on page 392.) Significance: The three clauses of the Eighth Amendment are the only provisions in the Constitution that place substantive limits on the severity of punishments in criminal cases. The Supreme Court’s role has been to interpret these clauses. The Eighth Amendment is derived almost verbatim from the English Bill of Rights (1689). Adopted in 1791 as part of the U.S. Bill of Rights, the amendment was intended to prohibit the abuse of federal government power, but the precise meaning of the amendment is unclear and requires interpretation by the Supreme Court. The first two clauses of the Eighth Amendment (prohibiting excessive bail and fines) have not been applied to the states. Although the Court has never established an absolute right to bail, it has reviewed whether bail has been set higher than necessary to ensure that a defendant appears for trial. The Court has taken a flexible interpretation of the cruel and unusual punishment clause, stating in Trop v. Dulles (1958) that punishments should be evaluated in light of the “evolving standards of decency” of a maturing society. The clause was formally applied to the states in Robinson v. California (1962). Barbaric punishments are prohibited, but the Court has refused to hold that the death penalty itself is cruel and unusual punishment. Punishments disproportionate to the crime, the treatment of prisoners, and conditions of confinement, may also violate the Eighth Amendment. John Fliter

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NINTH AMENDMENT Description: Amendment to the U.S. Constitution stating that the enumeration of certain rights in that document does not mean other, unenumerated rights should be denied. (The full text of the Ninth Amendment appears in this volume on page 392.) Significance: Relying on the Ninth Amendment, the Supreme Court did not confine itself to rights directly stated in the Constitution but also enforced unenumerated rights, including the right of privacy. The Ninth Amendment is among the most enigmatic parts of the Bill of Rights. At one level, the thrust of the amendment is relatively clear. The Bill of Rights and other parts of the constitutional text do not contain an exhaustive listing of the people’s rights. However, the questions of what other rights the Constitution protects and from whom, as well as who may enforce such rights and how they relate to delegated and reserved governmental powers, raise complex interpretive problems. Historical Origins and Early Invocations. Federalist James Madison apparently drafted the amendment to address concerns that adding a bill of rights to the constitutional text might imply that the people held only the rights listed in that document. Claims that the people held other rights were often linked to a premise that the Constitution delegated limited powers to the federal government. Accordingly, the Ninth Amendment was viewed as a companion to the Tenth Amendment, which reserved for the states or the people all powers “not delegated to the United States by the Constitution, nor prohibited by it to the States.” Even before the Bill of Rights was ratified by three-fourths of the states, Madison relied on the terms of these two amendments to support arguments that Congress had no authority to establish a national bank. In debates within the House of Representatives on February 2, 1791, Madison claimed the Ninth Amendment “guard[ed] against a latitude of interpretation” and the Tenth Amendment “exclude[ed] every source of power not within the Constitution itself.” The Supreme Court’s decision in McCulloch v. Maryland (1819) had implications for interpreting the Ninth and Tenth Amendments. In arguing that Congress had authority to establish a national bank, Chief Justice John Marshall rejected a narrow rule of construction for interpreting the

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Constitution’s delegations of power. He argued instead that the Constitution gave Congress “vast powers,” on whose execution “the happiness and prosperity of the nation so vitally depends.” Variations of this reasoning would eventually support expansive conceptions of federal power and correspondingly narrow conceptions of residuals—including reserved powers and retained rights. In Fletcher v. Peck (1810), however, Chief Justice Marshall suggested that judges might enforce unenumerated rights as limits on the states. In subsequent cases, the justices linked the idea of unenumerated rights to principles of limited federal power. The Ninth Amendment and Slavery. In Scott v. Sandford (1857), Chief Justice Roger Brooke Taney argued in his majority opinion that the Missouri Compromise Act of 1850 was invalid because it exceeded constitutional delegations, encroached on reserved powers, and abridged retained rights. Referring to rights of slave ownership, Taney wrote, “The powers over person and property of which we speak are not only not granted to Congress, but are in express terms denied, and they are forbidden to exercise them.” More specifically, he argued that Congress “has no power over the person or property of a citizen but what the citizens of the United States have granted.” Reinforcing Taney’s arguments, Justice John A. Campbell quoted statements made by the authors of the Constitution intended to assure Antifederalists that the federal government would be limited to certain enumerated powers. Despite these assurances, the Constitution’s critics demanded an “explicit declaration” that the federal government would not assume powers not specifically delegated to it. As a result, Campbell said, the Ninth and Tenth Amendments were “designed to include the reserved rights of the States, and the people . . . and to bind the authorities, State and Federal . . . to their recognition and observance.” Claiming faithfulness to these interpretive premises, Campbell denied that Congress had power to prohibit slavery in the territories. The Civil War Amendments (especially the Thirteenth and Fourteenth) overturned the central holdings of Scott and formalized the results of the Civil War by invalidating slavery and making all native-born people, including African Americans, citizens. However, these changes, along with others, did not end controversy over the scope of delegated powers or their relationship to reserved and retained prerogatives. Accordingly, the justices continued to deal with the problems of constitutional construction that were at the heart of the Ninth Amendment.

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Twentieth Century Precedents. These problems came to a head again during the New Deal era. The mid-1930’s inaugurated an increasingly deferential approach to assertions of national power and had corresponding implications for interpreting limitations on those powers. In this context, the Ninth Amendment made its first substantial appearance in a majority opinion for the Court. In Ashwander v. Tennessee Valley Authority (1936), the justices upheld the operation of the Wilson Dam by the Tennessee Valley Authority, an agency of the U.S. government. Among other things, the plaintiffs argued that the sale of electric energy generated by the dam exceeded constitutional delegations of power and abridged rights protected by the Ninth Amendment. Chief Justice Charles Evans Hughes, writing the majority opinion, dismissed both arguments. Referring to the Ninth Amendment, he claimed that “the maintenance of rights retained by the people does not withdraw the rights which are expressly granted to the Federal Government. The question is as to the scope of the grant and whether there are inherent limitations which render invalid the disposition of property with which we are now concerned.” In this passage, Chief Justice Hughes relied on normative premises similar to those implicit in debates by the creators of the Constitution on matters of structure. Following Madison’s example, the chief justice treated delegated powers and retained rights as mutually exclusive and reciprocally limiting prerogatives. However, Hughes suggested that a finding of delegated power precluded opposing claims of retained rights. He characterized the latter, like reserved powers, as residuals beyond the legitimate reach of federal delegations. Eleven years later, Justice Stanley F. Reed commented further on the Ninth AmendJustice Stanley F. Reed. (Library of Congress) ment in his opinion for the

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majority in United Public Workers v. Mitchell (1947). In that case, the justices upheld a section of the Hatch Act (1939) that prohibited employees of the federal government from active participation in political campaigns. Reed accepted the employees’ stance that “the nature of political rights reserved to the people by the Ninth and Tenth Amendments are involved. The rights claimed as inviolate may be stated as the right of a citizen to act as a party official or worker to further his own political views.” The justice claimed, however, that “these fundamental human rights are not absolutes” and thus were subject to reasonable governmental restriction. By this time, the Court had already enforced many of the guarantees of the Bill of Rights against the states through the Fourteenth Amendment’s due process clause. In such cases, the Court repeatedly treated popular rights as “trumps” capable of preempting otherwise legitimate assertions of governmental power. The Court had also repeatedly interpreted enumerated rights as similar limitations on federal powers. In Mitchell, however, Justice Reed did not explore the possibility of judges’ enforcing unenumerated rights as such limitations. Absent such a reconceptualization, the Ninth Amendment—along with the Tenth—would have diminished practical significance. Claims of unenumerated rights would be preempted by increasingly expansive conceptions of delegated powers. The Right of Privacy. In the 1960’s, the Court first relied on the Ninth Amendment to enforce unenumerated rights as limits on state powers. The Court made this move in the landmark case of Griswold v. Connecticut (1965). The majority opinion, written by Justice William O. Douglas, invoked the Ninth along with the First, Third, Fourth, Fifth, and Fourteenth Amendments, to support the Court’s invalidation of a state law prohibiting the use of contraceptives by married couples. According to Douglas, the state law abridged a right of privacy that was “older than the Bill of Rights.” He presumed that the government’s purpose was valid but suggested that the means chosen “swe[pt] unnecessarily broadly and thereby invade[d] the area of protected freedoms.” Justice Arthur J. Goldberg in his concurrence offered his view of the Ninth Amendment’s relevance in this context. In the most extensive explicit analysis of the Ninth Amendment in a Court opinion to date, Goldberg reviewed commentary on the amendment by Madison and Joseph Story, along with judicial precedents enforcing fundamental liber-

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ties in addition to enumerated rights. His central claim was that the Ninth Amendment supported interpreting the Fourteenth Amendment as embracing unenumerated along with enumerated liberties. Justice Hugo L. Black in his dissent criticized both the majority opinion and Justice Goldberg’s concurrence. He denied that the Constitution protected a right of privacy and claimed that relying on the Ninth Amendment to enforce such a right against the states turned somersaults with history. He stated that the Ninth Amendment was added to constitutional text “to assure the people that the Constitution in all its provisions was intended to limit the Federal Government to the powers granted expressly or by necessary implication.” In Roe v. Wade (1973), the Court extended its holding in Griswold. Justice Harry A. Blackmun, in the majority opinion, wrote, “The right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Blackmun hesitated to rely squarely on the Ninth Amendment to strike down the challenged state law. Following Douglas and Goldberg’s opinions in Griswold, however, he suggested connections between the Ninth and Fourteenth Amendments. A Saving Clause. In Richmond Newspapers v. Virginia (1980), Chief Justice Warren E. Burger announced the Court’s ruling that the First and Fourteenth Amendments guaranteed a right of the public and press to attend criminal trials. Burger relied on the Ninth Amendment to rebut arguments that such a right was not protected simply because it was nowhere spelled out in the Constitution. In his view, the Ninth Amendment was significant as a saving clause designed to allay fears that the explicit listing of certain guarantees could be interpreted as excluding others. The amendment prevented people from claiming that “the affirmation of particular rights implies a negation of those not expressly defined.” Burger pointed out, moreover, that the Court repeatedly enforced fundamental rights going beyond those explicitly defined in the Constitution, including the rights of association, of privacy, to be presumed innocent, to travel freely, and to be judged by a standard of proof beyond a reasonable doubt in criminal trial. It is impossible to ascertain with confidence the extent to which justices have relied on the Ninth Amendment as an interpretive guide but not

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cited it in their opinions. However, Chief Justice Burger’s opinion in Richmond Newspapers is a reminder that justices have not confined themselves to protecting enumerated rights. They have also protected unenumerated rights and taken positions on what rights the people hold in connection with interpreting the character and scope of federal and state governmental powers. Further Reading The most comprehensive collection of materials on the Ninth Amendment is The Rights Retained by the People: The History and Meaning of the Ninth Amendment (2 vols., Fairfax, Va.: George Mason University Press, 19891993), edited by Randy E. Barnett. These two volumes include documentary sources, selections from books, reprints of law review articles, and a bibliography of writings on the amendment through 1992. Much of volume 2 reprints essays from a symposium on the amendment that were originally published in volume 64 of the Chicago-Kent Law Review (1988). Later works analyzing the Ninth Amendment include Calvin R. Massey’s Silent Rights: The Ninth Amendment and the Constitution’s Unenumerated Rights (Philadelphia: Temple University Press, 1995) and Wayne D. Moore’s Constitutional Rights and Powers of the People (Princeton, N.J.: Princeton University Press, 1996). The latter explores premises of popular sovereignty and conceptions of constitutional structure, including how they inform interpretation of the Ninth Amendment. Wayne D. Moore

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TENTH AMENDMENT Description: Amendment that reserves for the states those powers not delegated to the federal government by the Constitution. (The full text of the Tenth Amendment appears in this volume on page 392.) Significance: The Supreme Court’s decisions involving the Tenth Amendment were not always consistent. At times the amendment was criticized as redundant and at others reaffirmed as a valuable part of the Constitution. The Tenth Amendment protects the reserved powers of the state, those not delegated to the federal government by the U.S. Constitution. The First Congress received numerous requests to include a means of protecting the reserved powers of the states. These concerns arose in many quarters during the Constitutional Convention of 1787 and ratification process, especially among the Antifederalists, who feared that an overbearing national government would assume the authority of the states. Article II of the Articles of Confederation had contained explicit provisions for protecting states, initiating a system whereby “each state retains its sovereignty.” Various early state constitutions included provisions outlining the primacy of states in the confederal arrangement. Federalists and Antifederalists. The most popular form of amendment requested during the state ratification conventions and proposed to the First Congress concerned a reserved powers clause. The defenders of the Constitution argued that such a provision was unnecessary. James Madison suggested in No. 39 of The Federalist (1788) that each state was “a sovereign body,” bound only by its voluntary act of ratification. Other Federalists at the Virginia ratifying convention, including James Wilson, Alexander Hamilton, and John Marshall, held that such a provision was already present in the Constitution and that the new government would have only the powers delegated to it. Opposition to and suspicion of the proposed Constitution on the grounds that it would infringe on the privileged status of the states was widespread. The defenders of state authority viewed the states as the repository of reserved power, and many believed that states were invested with an equal capacity to judge infractions against the federal government. In the Virginia ratifying convention, George Nicholas and

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James Wilson was among the delegates at Virginia’s ratifying convention who argued that the Tenth Amendment was unnecessary because its provisions were already inherent in the Constitution. (Library of Congress)

Edmund Randolph, members of the committee reporting the instrument of ratification, noted that the Constitution would have only the powers “expressly” delegated to it. If Federalists disagreed with the stress on state authority, they generally viewed a reserved power clause as innocuous, and Madison included such a provision among the amendments he introduced in 1789. In the First Congress, Elbridge Gerry, a Founder and Antifederalist elected to the House of Representatives, introduced a proposal reminiscent of the Articles of Confederation, leaving to the states all powers “not expressly delegated” to the federal government. Gerry’s proposal was defeated, in part because of concerns about the similarity between the language of his amendment and that of the articles. Others who took a states’ rights or strict constructionist view of the Constitution, including Thomas Jefferson, persisted in defending state power. Before ratification of the Tenth Amendment, Jefferson advised President George Washington that incorporating a national bank was unconstitutional, basing his opinion on the amendment. Jefferson would

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later compose the Kentucky Resolutions, which defended the states as the sovereign building blocks of the American nation and noted that the states retained a means of protection when threatened. To describe the process of state action, Jefferson supplied a new term, nullification, to note the immediacy and severity of the “remedy” necessary to prohibit the federal government from absorbing state authority. Defenders of the federal government, sometimes described as nationalists or loose constructionists, argued that Congress must assume more power if the needs of the country were to be met. Most prominent among the advocates of increased federal authority was Hamilton. For Hamilton, the Tenth Amendment was unnecessary as the political order already protected states. The Constitution, according to the nationalists, already contained provisions for the exercise of federal power, including the necessary and proper clause and supremacy clause. The Court and the Amendment. The Supreme Court addressed the controversy in McCulloch v. Maryland (1819). The Court upheld the constitutionality of a national bank, even though such an institution was not specified in the Constitution. In dismissing a strict delineation of state and federal authority, the Court, under the leadership of Marshall, extended the powers of Congress at the expense of the states. However, the Marshall Court also affirmed the notion that police powers belonged exclusively to the states. Under Chief Justice Roger Brooke Taney, the Court assumed more of a strict constructionist posture. With the Civil War and Reconstruction, the authority and influence of the federal government were greatly increased. The role of the Tenth Amendment was essentially disregarded as federal troops occupied southern states and Congress provided governance. The authority of the states continued to suffer, resulting in part from a series of Court decisions in the twentieth century. In Champion v. Ames (1903), the Court affirmed a congressional act that prohibited the sale of lottery tickets across state lines as an effort to limit gambling. Before Champion, decisions regarding gambling were made by the states. The decisions of the Court were not consistent, and it soon adopted a view of the relationship between states and the federal government that allowed each to be authoritative in its own sphere, exempting “state instrumentalities” from federal taxation. In Hammer v. Dagenhart (1918), the Court ruled in favor of state power in terms of commerce. The Tenth Amendment would, however, suffer its most severe criticism in United States v. Darby Lumber Co. (1941).

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In this decision, Chief Justice Harlan Fiske Stone discredited the amendment as “redundant” and a “constitutional tranquilizer and empty declaration.” Although Stone dismissed the amendment, continued authentication of its importance can be seen in Fry v. United States (1975), in which the Court affirmed that the amendment “expressly declares the constitutional policy that Congress may not exercise power in a fashion that impairs the States’ integrity or their ability to function effectively in a federal system.” In Printz v. United States (1997), the Court again forcefully affirmed the amendment, noting that the amendment made express the residual state sovereignty that was implicit in the Constitution’s conferring of specific governmental powers to Congress. Further Reading Berger, Raoul. Federalism: The Founders’ Design. Norman: University of Oklahoma Press, 1987. Berns, Walter. “The Constitution as Bill of Rights.” In How Does the Constitution Secure Rights?, edited by Robert A. Goldwin and William Schambra. Washington, D.C.: American Enterprise Institute, 1985. _____. “The Meaning of the Tenth Amendment.” In A Nation of States, edited by Robert A. Goldwin. Chicago: Rand McNally, 1963 Calhoun, John C. “A Discourse on the Constitution and Government of the United States.” In Union and Liberty: The Political Philosophy of John C. Calhoun, edited by Ross M. Lence. Indianapolis, Ind.: Liberty Fund, 1992. Hickok, Eugene W., Jr. “The Original Understanding of the Tenth Amendment.” In The Bill of Rights, edited by Hickok. Charlottesville: University of Virginia Press, 1991. Kaminski, John P., et al., eds. The Documentary History of the Ratification of the Constitution, Volumes VIII-X: Ratification of the Constitution by the States, Virginia. Madison: State Historical Society of Wisconsin, 1993. Lofgren, Charles A. “The Origins of the Tenth Amendment, History, Sovereignty, and the Problems of Constitutional Intention.” Constitutional Government in America, edited by Ronald K. L. Collins. Durham, N.C.: Carolina Academic Press, 1980. Story, Joseph. Commentaries on the Constitution of the United States. Vol. 2. Boston: C. C. Little and J. Brown, 1833. H. Lee Cheek, Jr.

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ACADEMIC FREEDOM Description: Ability freely to exchange ideas and concepts in an academic setting. Relevant amendment: First Significance: The Supreme Court has never granted academic freedom full constitutional status. It has ruled both for and against the protection of academic freedom on the basis of the First and Fourteenth Amendments. In many rulings, the Supreme Court recognized that citizens possess constitutional rights of free speech and due process. However, when these citizens were faculty members at academic institutions, the Court also obligated them to respect their responsibilities to their students, their academic community, and society in general. In early cases such as Gitlow v. New York and Whitney v. California (1928), the Court struggled with the standard for judging constitutionality of state laws or actions that were being challenged as violations of the free speech clause of the First Amendment. The Court upheld convictions for subversive advocacy in both Gitlow and Whitney and ruled that the defendants’ First Amendment rights had not been violated. The dissent issued in Gitlow by Justice Oliver Wendell Holmes joined by Justice Louis D. Brandeis became the test by which the Court determined what speech was allowable. The justices stressed that speech should be protected unless it creates a clear and present danger. In Stromberg v. California (1931), Stromberg’s lawyers used the clear and present danger test in their arguments before the Court, which overturned Stromberg’s conviction by a state court on a charge of displaying a red (communist) flag at a youth camp. Two Supreme Court decisions in 1952 focused on the First Amendment rights of teachers. Both cases, Adler v. Board of Education and Wieman v. Epdegraff, involved teachers being discharged because of membership in subversive organizations. In Adler, the Court upheld New York’s Feinberg Law, which banned teachers who belonged to subversive organizations from public schools. Justice Sherman Minton reasoned that because teachers shape the attitudes of young minds toward the society in which they live, the state has a vital concern in protecting schools from subversive organizations. In the dissent, Justices William O. Douglas and Hugo L. Black wrote of their concern for censorship and threat to First

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Amendment rights. This concern for constitutional freedoms would be echoed by Justice William J. Brennan, Jr., in Keyishian v. Board of Regents (1967). In Wieman v. Epdegraff, the Court overruled an Oklahoma statute that disqualified people from teaching or other public employment solely on the basis of membership in a subversive organization and not whether they had knowledge of its purposes and activities. The Oklahoma statute was ruled unconstitutional under the due process clause. Justice Felix Frankfurter endorsed the issue of academic freedom for teachers at all levels. The Warren Court. As chief justice, Earl Warren led the Court in landmark decisions guaranteeing First Amendment protections. In Shelton v. Tucker (1960), the Court declared unconstitutional a New York statute that required teachers to disclose all organizational affiliations. In Keyishian v. Board of Regents, it struck down sections of the Feinberg Law that had been upheld in Adler and established broad First Amendment protections for academic freedom for college faculty. In the majority opinion, Justice Brennan stressed the importance of academic freedom for all people, not just for teachers. The Court’s ruling in Epperson v. Arkansas (1968) extended academic freedom to precollegiate levels as it negated an Arkansas law prohibiting the teaching of evolution. The Court ruled on the basis of the First Amendment prohibition against religious establishment and therefore did not set a precedent for free speech rights for elementary and secondary schools. Free speech protection would not be extended to the precollegiate level until Tinker v. Des Moines Independent Community School District (1969). Burger-Rehnquist Eras. Justices appointed by Presidents Richard M. Nixon and Ronald Reagan (Warren E. Burger, William H. Rehnquist, Lewis F. Powell, Jr., and Sandra Day O’Connor) formed the core of a new majority on the Burger and Rehnquist Courts. Under these chief justices, the Court would issue opinions contradicting rulings that had previously limited the authority of school-governing officials. In Ambach v. Norwick (1979), two teachers from Scotland and Finland challenged the New York statute that denied certification to foreign nationals who were not in the process of attaining U.S. citizenship. In writing the majority opinion, Justice Powell stressed the role of the school as an agency for socialization and the importance of the influence of the teacher in this process. The

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ATTEMPTS TO BAN BOOKS FROM U.S. SCHOOLS IN 1993-1994

The 1993-1994 school year saw a record number of efforts to ban books from U.S. schools. This map summarizes the number of such attempts in each state. WA 17 OR 12

ID 2 NV 1

CA 28

ND 2

MT 8

UT 4

AZ 13

WY 0 CO 16 NM 0

MN 7

SD 2

WI 9

IA 12

NE 1 KS 5 OK 2

MO 17 AR 0 LA 1

TX 27

IL 9

VT 0 ME 2 NY 16

MI 17 IN 14

OH 14 KY 3

PA 13 WV 0 VA 7 NC 16 SC 8

TN 1 MS 2

AL 1

GA 13

NH 4 MA 2 RI 1 CT 1 NJ 4 DE 1 MD 14 DC 0

FL 16 AK 10 HI 0

0

11-20

1-10

over 20

Source: Parenting (February, 1995), based on information from People for the American Way.

teachers argued on the grounds of academic freedom, but the Court ruled on the basis of an equal protection case under the Fourteenth Amendment rather than a free speech case under the First Amendment. The Ambach case, which describes the political socialization of schools, was cited by both sides in Island Trees School District v. Pico (1982). Justices Brennan and Harry A. Blackmun asserted in the majority opinion that judicial review of book removals from libraries is warranted in order to prevent First Amendment violations. In their dissent, Justices Burger, Powell, and Rehnquist argued that it is not unconstitutional for school officials to remove from the library books that contain expressions of values that are not shared by the community. Hazelwood School District v. Kuhlmeier (1988) was a milestone in supporting the authority of school officials. The case involved a Missouri high

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school principal who removed articles from a school newspaper. The Court ruled that the newspaper was part of the school curriculum and was rightfully under the control of the school. The Court did not view the principal’s action as a First Amendment violation. University of Pennsylvania v. Equal Employment Opportunity Commission (1990) placed a different twist on the typical academic freedom argument. The University of Pennsylvania denied tenure to an associate professor who then filed a charge with the Equal Employment Opportunity Commission alleging discrimination in violation of Title VII of the Civil Rights Act of 1964. When a subpoena was issued requesting tenure-review files of the professor and of five other male faculty members, the university filed suit. The university argued that the files would jeopardize a commonlaw privilege against disclosure of confidential peer review materials and would violate the faculty members’ First Amendment rights, including academic freedom. The Court rejected this position and ruled that a university does not enjoy a special privilege regarding peer review files. Further Reading Menard, Louis. The Future of Academic Freedom. Chicago: University of Chicago Press, 1996. Poch, Robert. Academic Freedom in American Higher Education: Rights, Responsibilities, and Limitations. Washington, D.C.: George Washington University Press, 1993. Whitson, James Anthony. Constitution and Curriculum. London: The Falmer Press, 1991. Gae R. Johnson

ASSEMBLY AND ASSOCIATION, FREEDOM OF Description: The right of the people to gather peaceably and to associate with anyone they choose. Relevant amendment: First Significance: The Supreme Court has generally upheld the freedom of assembly and association, although it has upheld time, place, and manner restrictions on demonstrations, picketing, and similar gatherings.

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The First Amendment to the Constitution prohibits Congress from making any law that limits “the right of the people peaceably to assemble,” but the Constitution does not mention freedom of association. Freedom of association has been inferred, however, from freedom of assembly, and the guarantees of the Bill of Rights, of which the First Amendment is part, have been inferred to apply to the states. Therefore, subject to the interpretation of the Supreme Court, all laws, whether state or federal, that unduly restrict freedom of assembly and association are unconstitutional. The only explicit restriction on these freedoms is the word “peaceably”; mobs and other groups intent on violence or destruction of property lie outside constitutional protection, as do picketers who physically

Demonstrators attempting to exercise their right to assemble in front of the Capitol Building in Washington, D.C. (Library of Congress)

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oppose those who wish to cross picket lines. The freedoms also impinge on trespassing laws that protect the rights of private owners of property, resulting in issues of legal interpretation. Additionally, the Court has upheld laws requiring the licensing of parades and other large assemblies that, although taking place in public areas, may disrupt traffic or otherwise place an undue burden on local authorities. The Court has made further distinctions between public and private places. Quasi-public or quasi-private places, such as college campuses and privately owned areas open to the general public, have been defined regarding the limitations of the right of assembly. How such limitations are to be interpreted and applied have been and continue to be the subject of litigation that is often controversial. Interpretations. The general standard that the Court applies to the question of the right of assembly is the same that it applies to speech: time, place, and manner. For example, the noisy demonstration that is legal in a park outside a public library may be considered illegal if it takes place inside the library. As the Court stated in United States Postal Service v. Greenburgh Civic Associations (1981): “The First Amendment does not guarantee access to property simply because it is owned or controlled by the government.” This statement should be compared, however, with one from Hague v. Congress of Industrial Organizations (1939), that whether streets or parks are publicly or privately owned, “they have immemorially been held in trust for the use of the public for purposes of assembly and discussing public questions.” The conflict between these two statements is to be resolved by examination of the intent that the government has in limiting the assembly in question. In Perry Education Association v. Perry Local Educators’ Association (1983), the Court stated that the government may “reserve a forum for its intended purposes as long as the regulation is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view.” Perry concerned a dispute between two teachers’ unions. Under the employment contract, Perry Educational Association (PEA) had access to the interschool mail system and teacher mail boxes. The bargaining agreement also provided that access rights to the mail facilities were not available to any rival union. A rival union, Perry Local Educators’ Association filed suit, contending that PEA’s preferential access to the internal mail system violated the First Amendment. The Supreme Court ruled that the PEA’s contract provision did not violate the First Amendment.

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Freedom of association—in particular, political association, including membership in communist organizations—has been examined in similar ways. In such cases as Yates v. United States (1957), the Court explicitly rejected the idea that membership in a group indicates guilt by association. Communist groups are not the only ones whose memberships were subject to government scrutiny. In National Association for the Advancement of Colored People v. Alabama (1958), for example, the National Association for the Advancement of Colored People was able to enforce its right to free and private association, in particular to keep its membership rolls out of the hands of Alabama officials. Such protection, however, does not extend to groups that a government can demonstrate are engaged in illegal activities. The Court has upheld the careful application of federal antigang laws that make it a crime to belong to a group engaged in criminal enterprise. Private organizations that discriminate according to sex, race, or other criteria have defended themselves on First Amendment grounds, with varying degrees of success. In general, the Court has placed greater emphasis on laws against discrimination than on the right to association, especially regarding large associations that have few restrictions on membership. In Roberts v. United States Jaycees (1984), the Court reasoned that the Jaycees lacked the distinctive characteristics, such as small size, identifiable purpose, selectivity in membership, and perhaps seclusion from the public eye that might afford constitutional protection to the organization’s exclusion of women. In Rotary International v. Rotary Club of Duarte (1987), the Court upheld a California law that prevented Rotary International from excluding women from membership, and in New York State Club Association v. City of New York (1988), the Court upheld a New York City law prohibiting discrimination based on race, creed, sex, and other categories in places “of public accommodation, resort, or amusement.” The court held that the law applied to clubs of more than 400 members providing regular meal service and supported by nonmembers for trade or business purposes. A landmark case touching on freedom of association is Griswold v. Connecticut (1965). Griswold gave medical advice to married people regarding birth control and was convicted of breaking a Connecticut law prohibiting the use of birth control and the giving of medical advice about birth control. The Supreme Court declared the Connecticut law an unconstitutional violation of the right of privacy. The Constitution makes no mention of such a right, but in Griswold the Court reasoned that such a

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right flowed from the right to association. Put broadly, the government did not have the authority to tell people what they could talk about with whom. Thus the “right to be left alone is the beginning of all freedoms” could be inferred to freedom of association. Abortion clinic protests, specifically the tactics employed by those opposed to abortion to prevent entrance to clinics, have generated various cases touching on freedom of assembly. In Bray v. Alexandria Clinic (1993), for example, the Court held that picketers in front of an abortion clinic did not violate the rights of those accessing the clinic to equal protection of the law because the picketers’ methods did not rise to the level of “hinderance” considered illegal. On the other hand, the convictions of abortion clinic protesters who are too aggressive in their methods, particularly those that rise to physical confrontation, have been upheld in various courts. Further Reading Abernathy, M. Glenn. The Right of Assembly and Association. Columbia: University of South Carolina Press, 1981. Gutmann, Amy, ed. Freedom of Association. Princeton, N.J.: Princeton University Press, 1998. Murphy, Paul L. Rights of Assembly, Petition, Arms, and Just Compensation. New York: Garland, 1990. Shiffrin, Steven H., and Jesse H. Choper. The First Amendment: Cases, Comments, Questions. St. Paul, Minn.: West Publishing, 1996. Eric Howard

AUTOMOBILE SEARCHES Description: The inspection by police and other government agents of the interiors of motor vehicles to look for evidence of unlawful activity. Relevant amendment: Fourth Significance: Starting with its 1925 ruling, the Supreme Court made it progressively easier for police and other government agencies to engage lawfully in searches of motor vehicles by interpreting the search and seizure requirements of the Fourth Amendment in a manner that clearly distinguishes the search of a vehicle from that of a residence or a container.

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The framers of the Fourth Amendment were concerned about protecting people from unlawful government searches and seizures of their “houses” and “effects” when they drafted the amendment in the late eighteenth century. When the automobile became prominent in U.S. society more than a century later, the Supreme Court had to decide how the words and principles of the Fourth Amendment should be applied to searches of cars and other motor vehicles. Beginning with its decision in Carroll v. United States (1925), the Court has consistently held that where there is probable cause that an automobile contains evidence of a crime, the police may search that vehicle without a search warrant. Unlike houses, automobiles are mobile and therefore the police may not have time to obtain a warrant before the vehicle and any evidence contained within it disappear, the Court reasoned. As the Court applied the warrant requirement of the Fourth Amendment differently to automobiles than to houses, inevitably the question arose as to whether the search of a motorhome would be treated as that of a house or an automobile. In California v. Carney (1985), the Court held that in most cases, the potential mobility of a motorhome obviates the need for the police to obtain a search warrant. Searches of effects, such as containers, generally are subject to the same warrant requirement that applies to house searches. The Court was thus confronted with the question of whether to require the police to obtain a warrant before searching a container located in an automobile. In a series of cases culminating in California v. Acevedo (1991), the Court held that when the police have probable cause that a container in an automobile contains criminal evidence or that the evidence is located somewhere in the automobile and can fit into the container, they may search the container without obtaining a warrant. The Court has also authorized police searches of automobiles in situations in which there was no probable cause that there was criminal evidence within the automobile. After lawfully arresting the occupant of a vehicle, the police may search the passenger area of that vehicle, including the glove compartment or items within the passenger area. According to the Court’s decision in New York v. Belton, (1981), such a search is permissible to prevent the arrested person from grabbing a weapon or disposing of evidence. Additionally, when police properly impound a vehicle, they are allowed to search all parts of the vehicle in order to inventory its contents, as the Court held in South Dakota v. Opperman (1976). In United States v. Di Re (1999), the Court held that officers who stopped a

128 / Bad tendency test

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driver for a traffic violation and saw evidence of drugs were allowed to search everything in the automobile and the private effects of a passenger. Further Reading Quick, Bruce D. Law of Arrest, Search, and Seizure: An Examination of the Fourth, Fifth, and Sixth Amendments to the United States Constitution. Rev. ed. Bismarck, N.Dak.: Attorney General’s Office, Criminal Justice Training and Statistics Division, 1987. Regini, Lisa A. “The Motor Vehicle Exception: When and Where to Search.” FBI Law Enforcement Bulletin 68, no. 7 (July, 1999): 26-32. Savage, David G. “Privacy Rights Pulled Over: Cops Get More Power to Search Personal Effects in Vehicles.” American Bar Association Journal 85 (June, 1999): 42-44. Steven P. Grossman

BAD TENDENCY TEST Description: A test first applied by the Supreme Court in 1919 according to which speech that had a “tendency” to incite unlawful acts was not constitutionally protected. Relevant amendment: First Significance: Throughout much of the twentieth century, the Court used the bad tendency test broadly to restrict speech critical of the U.S. government or its policies. Although usually associated with Debs v. United States (1919), the bad tendency test actually has its genesis in Schenck v. United States (1919). In that case, the Supreme Court decided that Charles Schenck, a leader of the Socialist party, was guilty of a conspiracy to violate the 1917 Espionage Act by distributing flyers denouncing the draft. As part of the opinion in Schenck, Justice Oliver Wendell Holmes made it clear that not all speech can or should be protected by invoking the now-famous example of a person yelling “fire” in a crowded theater. Drawing the line between protected and unprotected speech, however, has proven difficult. In Schenck, the Court established the following test for determining whether speech should be protected:

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Bad tendency test / 129

The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about substantive evils that Congress has a right to prevent.

As applied, this test was far less protective of free speech than the term “clear and present danger” might suggest. No showing of present danger was required in Schenck or subsequent cases. The Court held that if the “tendency and intent” of the speech was to encourage illegal action, then the speech was not protected by the First Amendment. Furthermore, the Court was often willing to assume a bad tendency and intent if the speech was critical of the government or its policies. The bad tendency test was notoriously applied just weeks after Schenck in Debs v. United States, when the perennial presidential candidate Eugene Debs was convicted of conspiracy for telling a crowd that he was sympathetic toward those who were trying to obstruct the draft. He was sentenced to ten years in prison for the crime. Almost immediately, the test came under fire, with Justice Holmes dissenting against the test’s application in Abrams v. United States (1919). His was a lone voice, however, and the bad tendency test continued to be applied. For example, in Gitlow v. New York (1925), Whitney v. California (1927), and Dennis v. United States (1951), members of either the Socialist or Communist Parties were convicted of breaking the law because they were found to have advocated illegal action by distributing flyers or assembling in groups. Although the Court employed various First Amendment tests after Debs, it did not begin to seriously move away from the substance of the bad tendency test until Yates v. United States in 1957. Socialist Party leader Eugene Debs. In Yates, the Court reversed (Library of Congress)

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the conspiracy convictions of fourteen “second-string” Communist Party officials, drawing a line between advocacy of an abstract principle and advocacy of action. Even so, it was not until 1969, in Brandenburg v. Ohio, that the Court finally abandoned the bad tendency test completely and developed the modern, highly protective standard for freedom of speech. Further Reading Chafee, Zechariah, Jr. Free Speech in the United States. Cambridge, Mass.: Harvard University Press, 1941. Downs, Donald. Nazis in Skokie. Notre Dame, Ind.: University of Notre Dame Press, 1985. Greenawalt, Kent. Speech, Crime and the Uses of Language. New York: Oxford University Press, 1989. Evan Gerstmann and Christopher Shortell

BAIL Description: Money posted by persons accused of crimes as security for their appearance at trial. The U.S. Constitution offers guarantees against excessive bail, which were interpreted and generally upheld by the Supreme Court. Relevant amendment: Eighth Significance: Because of the inherent unfairness of subjecting an unconvicted person to a long, indefinite period of imprisonment, the Court has attempted to ensure that the accused is not unreasonably detained. Denial of bail or excessive bail is also thought to be an unreasonable impediment to the accused person’s right to prepare a defense. The use of bail has been a part of the Anglo-American criminal justice system since the English Bill of Rights of 1689 gave protections against excessive bail. The Founders of the American republic counted the right to a just bail among the essential liberties. The Eighth Amendment to the U.S. Constitution guarantees that “excessive bail shall not be required.” A stronger expression of the contemporary feeling about bail is found in the Northwest Ordinance of 1787, which declared that “all persons shall be bailable, unless for capital offenses, where the proof shall be evident, or the presumption great.”

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In 1895 the Supreme Court first affirmed the importance of a right to reasonable bail in Hudson v. Parker. Writing for the majority, Justice Horace Gray noted that a key principle of the U.S. justice system was “the theory that a person accused of a crime shall not, until he has been finally adjudged guilty . . . be absolutely compelled to undergo imprisonment or punishment.” However, an earlier decision, McKane v. Durston (1894), limited the scope of this decision by ruling that the Eighth Amendment’s bail proviIn a key 1895 Supreme Court sion did not apply to state courts. decision, Justice Horace Gray affirmed The Court in Stack v. Boyle (1951), a the principle of bail in the U.S. justice system. (Library of Congress) case involving twelve Communist Party leaders accused of conspiracy, was concerned that excessive bail hampered the accused’s right to a vigorous defense. The Court held that “the traditional right to freedom before conviction permits the unhampered preparation of a defense. Unless the right to bail is preserved, the presumption of innocence, secured after centuries of struggle, would lose its meaning.” The Court determined that the purpose of bail is to “serve . . . as assurance of the presence of an accused. Bail set at a figure higher than an amount reasonably calculated to fulfill this purpose is excessive under the Eight Amendment.” However, the next year, in Carlson v. Landon (1952), the Court in a 5-4 vote found that not all detentions were subject to bail, and Congress had the power to define cases in which bail was not allowed. The Carlson case was a civil case involving the detention of aliens before a deportation hearing. Preventive Detention. Traditionally, the sole justification for jailing an accused but otherwise presumed innocent person before trial was to assure that the individual did not flee. It was generally not believed to be proper to deprive people of their liberty on the grounds that they may commit future crimes when they have not been convicted of a crime. The constitutional protection of the rights of the accused person clashed in the late twentieth century, with the desire by federal authorities to “preventively detain” persons accused of federal crimes to prevent them from engag-

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ing in criminal activities. One concern is the fear that members of criminal organizations freed on bail might harass and intimidate witnesses, thereby corrupting the judicial process. The rise of international terrorism and drug trafficking led Congress to pass the Bail Reform Act of 1984, which allows a federal judge to consider preventive detention of a person accused of a federal crime if he or she finds that “no conditions or combination of conditions will reasonably assure the appearance of the [defendant] as required and the safety of any person before trial.” The act allows a federal prosecutor to ask a judge to hold a defendant without bail indefinitely if the prosecutor can make a showing that the person poses a threat to others. The Act Examined. The constitutionality of the Bail Reform Act was determined by the Court in United States v. Salerno (1987). Salerno involved two defendants indicted for racketeering and denied bail under the provisions of the act. One of the accused was alleged by prosecutors to be the “boss” of the Genovese crime family and the other a high-ranked “captain.” The crimes included several counts of extortion and conspiracy to murder. The Court examined whether the bail reforms violated the defendant’s constitutional right to be free from excessive bail, but it rejected the claim that Stack applied to the case. Limiting the scope of Stack, the Court found that the right to bail had never been considered absolute and that persons accused of capital crimes and at risk of flight had long been subject to bail restrictions and upheld the act. The Court noted that although “in our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception,” the Bail Reform Act fell “within that carefully limited exception.” The Count determined that the “numerous procedural safeguards” adequately protected against abuse of the act. Further Reading Duker, William F. “The Right to Bail: A Historical Inquiry.” Albany Law Review 42 (1977): 33-120. Goldkamp, John S. “Danger and Detention: A Second Generation of Bail Reform.” Journal of Criminal Law and Criminology 76 (Spring, 1985): 1-74. Metzmeier, Kurt X. “Preventive Detention: A Comparison of Bail Refusal Practices in the United States, England, Canada, and Other Common Law Nations.” Pace International Law Review 7 (Spring, 1996): 399-438. Kurt X. Metzmeier

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Birth control, right to / 133

BIRTH CONTROL, RIGHT TO Description: The right to use a method or object that aids in regulating or preventing the birth of children Relevant amendments: Fifth, Ninth, Fourteenth Significance: Based on definitions of individual liberties and the right to privacy, the American justice system has been involved in changing notions of the permissibility of individual citizens’ use of birth control Throughout American history, midwives and health professionals have always recorded ways in which couples could restrict or prevent pregnancies. In the nineteenth century, however, increasingly stringent moral standards and emphasis on women’s domesticity led reformers to identify the prevention of pregnancy as a moral evil. Such moral views were made a legal formality in 1873, when Anthony Comstock pressed for legislation that made illegal the possession, sale, or gift of any obscene materials or articles for the prevention of conception (Comstock Act). Comstock was made an assistant postal inspector, which gave him expanded power to investigate and prosecute the dissemination of literature dealing with planned parenthood through the mail. In the 1870’s and 1880’s, several states passed similar laws, making the use of contraceptives and the spread of information about pregnancy prevention punishable under obscenity statutes. The Birth Control Movement. Some reformers, however, viewed this legislation as damaging to the development of American families. Pointing to large immigrant families and to mothers who were always in ill health, they suggested that the spread of information about contraception would help to prevent unchecked growth of American cities. One reformer in particular, Margaret Sanger, was joined by Protestants, social reformers, Malthusian scholars, and others who believed that American cities suffered from unchecked population growth. Sanger chose to confront the Comstock Act. She founded planned parenthood clinics, and she reproduced contraception information to send to women by mail. Although doctors could prescribe contraceptives for health reasons (to prevent the spread of disease, broadly defined), Sanger and several other reformers, including her sister, were arrested and jailed under the terms of the Comstock Act. In spite of numerous penalties and court appear-

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Margaret Sanger (on step, facing baby) outside a Brooklyn courtroom during one of the many “birth control trials” to which she was subjected. (Library of Congress)

ances, Sanger continually agitated for changes in the laws to permit the use of contraception by married couples. Eventually, activists in the state of Connecticut made a direct challenge to the legal validity of such statutes. In 1935, the Birth Control League of Connecticut began to operate clinics for married women who could not afford doctors. Because this action violated Connecticut’s obscenity statutes, the directors of the clinic were arrested and found guilty, and the clinics were closed. In the 1960’s, however, Estelle Griswold, executive director of the Planned Parenthood League of Connecticut, opened another Planned Parenthood center for married women in the state. In Griswold v. Connecticut (1965), what was at issue were fundamental principles of individual freedoms and rights to privacy within the home. Griswold and her coworker both maintained that they had the right to practice their occupations and that the state’s effort to limit their right to property was arbitrary. Even more important, attorneys maintained that obscenity statutes such as those in Connecticut were a violation of due process, since they unfairly invaded the privacy of

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Birth control, right to / 135

the home and the private decisions of couples regarding their sexual practices and family planning. The Supreme Court, in a 7-2 ruling, agreed that laws passed under the terms of the Comstock Act were unfair invasions of privacy. Privacy and Birth Control After Griswold. Griswold v. Connecticut was one of several decisions that have dealt with the question of rights to privacy. In Mapp v. Ohio (1961; the right to privacy within one’s home), Bowers v. Hardwick (1986; permissibility of consensual sodomy), and Roe v. Wade (1973; the right of a woman to obtain an abortion), courts have had to address the extent to which the American judicial system protects individual liberties and citizens’ rights to privacy. After the Griswold case, contraception became widely available to individuals, through both private purchases and public programs. Later, the spread of venereal diseases and acquired immune deficiency syndrome (AIDS) added to public acceptance of the use of contraceptives. Nevertheless, public funding for the dissemination of information about contraception and of condoms and other preventive devices came under increasing criticism. Some groups have organized protests against the use of public monies for private relations. In particular, Roman Catholics and religious fundamentalists protest the spread of information and contraceptives on moral and religious grounds. Some cities have engaged in debates regarding whether the desire to protect public health outweighs the need to respect the religious and moral convictions of those opposed to the use of condoms and of family planning in general. Further Reading A good survey of the birth control movement which places birth control activism in historical perspective is Linda Gordon’s Woman’s Body, Woman’s Right: A Social History of Birth Control in America (New York: Penguin Books, 1977). On Margaret Sanger, see Margaret Sanger, My Fight for Birth Control (New York: Maxwell Reprint, 1969); Vivian L. Werner, Margaret Sanger: Woman Rebel (New York: Hawthorn Books, 1970); Gloria Moore and Ronald Moore, Margaret Sanger and the Birth Control Movement: A Bibliography, 1911-1984 (Metuchen, N.J.: Scarecrow Press, 1986); and David M. Kennedy, Birth Control in America: The Career of Margaret Sanger (New Haven, Conn.: Yale University Press, 1970). Sarah E. Heath

136 / Blasphemy

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BLASPHEMY Description: Contemptuous or irreverent expressions about God or matters held sacred in the dominant religion. Relevant amendment: First Significance: During the first half of the nineteenth century, state prosecutions of blasphemy occurred even when state bills of rights guaranteed freedom of speech and religion. Such prosecutions gradually ended because of the growth of secular and libertarian ideas. Under the Massachusetts blasphemy statute of 1782, “denying God” or “reproaching Jesus Christ or the Holy Ghost” were criminal acts. The state prosecuted and convicted a significant number of persons under the statute for about fifty years. In 1838, Abner Kneeland was sentenced to six months in the Suffolk County jail for his strong assertions of religious skepticism. Both the law and Kneeland’s conviction were upheld by the state’s supreme court. In New York, blasphemy was occasionally prosecuted as a crime at common law. The crime was defined as “maliciously reviling God or religion.” In 1811, a defendant was fined five hundred dollars and imprisoned for three months for “wickedly, maliciously, and blasphemously” saying in the presence of “good and Christian people” that “Jesus Christ was a bastard and his mother must be a whore.” When upholding the conviction in People v. Ruggles (1811). The state’s Chief Judge James Kent wrote that such language was “a gross violation of decency and good order.” Allowing blasphemy to go unpunished, he asserted, would do great harm to the “tender morals of the young,” eventually producing a culture in which oaths on the Bible would not be trustworthy. The U.S. Supreme Court never had an occasion to review a prosecution for blasphemy because the First Amendment was not made applicable to the states until about a century after such prosecutions ended. In one related case, Burstyn v. Wilson (1952), the Court overturned a New York law that had authorized the censorship of “sacrilegious” movies. Thomas T. Lewis

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CAPITAL PUNISHMENT Description: The killing of a convict by the state for purposes of punishment or to reduce future crime. Relevant amendment: Eighth Significance: The death penalty, although infrequently applied, has symbolic importance and has sharply polarized public opinion. The Supreme Court entered this fray only briefly, first to restrict executions, then to permit capital punishment, increasingly free of federal court supervision. During the colonial period and the founding of the United States, the execution of convicts was not only routine but also a public spectacle. The hangman’s noose, a humane alternative to beheading, was employed with a liberality that would disturb modern sensibility. In eighteenth century England, for example, it is estimated that approximately 240 crimes were punishable by death, with the sentence commonly carried out in the town squares. In contrast to millennia of practice, the nineteenth and twentieth centuries have seen a gradual civilization of punishment. Incarceration replaced execution for most crimes. Hangings were removed from public view and placed instead behind prison walls. The abolition of physical torture as a legitimate part of punishment followed, eventually culminating in efforts to also circumscribe the infliction of psychological pain. Thus, the noose was replaced by electrocution, followed by the gas chamber, and later by lethal injection, all in a search of a humane method of depriving the convict of life, as the ultimate punishment. In the eyes of many ethicists, legal scholars, and moral leaders, the fulfillment of this historical trend would be the abolition of capital punishment altogether. In the United States, one of the last democratic nations retaining the death penalty, this debate has often acquired a constitutional dimension. The Death Penalty and the Constitution. It is clear from the text of the Constitution that the Framers envisioned executions as a part of their legal regime. The Fifth Amendment provides that “no person shall be held to answer for a capital or otherwise infamous crime” absent an indictment by a grand jury. It further provides that no person shall “be subject for the same offense to be twice put in jeopardy of life and limb” nor be

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“deprived of life, liberty, or property without due process of law.” The Fourteenth Amendment, adopted after the Civil War, similarly commands that no state shall deny any person “life, liberty, or property, without due process of law.” Proponents of a contractual constitution, interpreted according to the historical intent of its Framers, are on apparently solid ground when they contend that the Constitution, in principle, sanctions capital punishment. Opponents of the death penalty point to the same pair of due process clauses, promises of legal fairness, to condemn the application of the death penalty as arbitrary, capricious, even, in the words of Justice Potter Stewart, “freakishly imposed.” They also point to the Fourteenth Amendment’s requirement that states accord all persons the “equal protection of the laws” and raise questions concerning possible racial bias in the meting out of death sentences. Finally, and most tellingly, the Eighth Amendment’s proscription of “cruel and unusual punishments” might provide a flat ban on capital punishment. The latter seems to have been adopted to end corporal punishments or the infliction of torture. However, in Weems v. United States (1910), the Supreme Court held that a constitutional principle “to be vital must be capable of wider application than the mischief which gave it birth.” Abolitionists contend that these clauses create evolutionary constitutional rules, progressively driven by contemporary moral theory, that now proscribe the death penalty, regardless of accepted practice at the time of their adoption. Judicial appeals to contemporary morality are always risky, especially regarding an emotionally contentious subject such as capital punishment. However, it is difficult to reconcile the death penalty, as practiced in the United States, with any of the common theoretical justifications for punishment. The death penalty is obviously not intended to accomplish the rehabilitation of the offender. There is little evidence in support of any general deterrence produced by the death penalty beyond that already achieved by incarceration and considerable evidence against the claim. Incapacitation of dangerous or repeat offenders can also be accomplished by means short of execution. Retribution, the theory that crime is a moral offense that must be redressed by the infliction of proportional pain to expiate the original offense, might justify capital punishment for heinous crimes, especially first-degree murder. The biblical injunction of “an eye for an eye and a tooth for a tooth” is a concise summary of retributive punishment. The problem is that retribution, if consistently followed, is a nondiscretionary punishment—a sentence proportional to

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the crime must be carried out, with no room for mercy or selection. Proponents of capital punishment who appeal to retribution would have to countenance the execution of all defendants convicted of crimes for which capital punishment is authorized. The result would be a rate of executions unprecedented in U.S. history. Public opinion overwhelmingly supports capital punishment. However, polls and jury behavior also show that Americans want the death sentence to be employed sparingly. The modern Court’s initial foray into death penalty law was not encouraging to abolitionists. In Louisiana ex rel. Francis v. Resweber (1947), the Court rejected the contention that a second attempt at executing a prisoner, the electric chair having malfunctioned the first time, was either double jeopardy or cruel and unusual punishment. Despite the Court’s permissive attitude, the number of executions in the United States was already in decline. National statistics on executions date only from 1930, with 1935 the largest single year, with 199 executions. By the 1960’s this number had declined to a trickle. Since the early 1980’s, however, the number of annual executions in the United States has again been rising, especially in southern states. Sixty-eight executions were carried out in 1998. The Death Penalty Moratorium. Encouraged by the Court’s activism in civil rights and defendants’ rights cases, death penalty opponents in the 1960’s began a campaign to enlist the Court in the cause of abolition. The Legal Defense Fund (LDF) of the National Association for the Advancement of Colored People, later joined by the American Civil Liberties Union, orchestrated a threefold attack on capital punishment. First, the routine exclusion of “scrupled” jurors, those opposed to the death penalty on principle, was said to result in nonrepresentative juries skewed toward conviction and execution. Second, the determination of guilt and passing of sentence in a single trial procedure put defendants in an untenable position of having to offer evidence in mitigation of a crime they also contended they did not commit. Finally, the nearly complete discretion accorded juries in deciding when to impose death (the only sentencing question juries are called on to decide) resulted in an unpredictable, arbitrary, and discriminatory application of the death penalty. In Witherspoon v. Illinois (1968), the Court banned the blanket exclusion of all scrupled jurors merely by virtue of their voicing objections to capital punishment. The state could still exclude those who would automatically or invariably vote against a death sentence, but not those ex-

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pressing only “general objections” to capital punishment. The practical result of Witherspoon was to require commutation or resentencing of nearly all death sentences for prisoners then on death row. Until further litigation sorted out all potential Witherspoon claims, a de facto moratorium on capital punishment had been achieved. From 1967 until 1977, no executions were carried out in the United States. Further LDF challenges to capital punishment were in the works. In Furman v. Georgia (1972), a fragmented Court adopted the third LDF critique of the death penalty as then practiced in all the states authorizing capital punishment, that unguided jury discretion produced arbitrary results. Only Justices William J. Brennan, Jr., and Thurgood Marshall held capital punishment to be cruel and unusual punishment per se in contravention of the Eighth Amendment. Dissenters William H. Rehnquist, Warren E. Burger, Lewis F. Powell, Jr., and Harry A. Blackmun found no constitutional prohibition to unbridled jury discretion to mete out death and would have deferred on the issue to state legislative politics (although the latter eloquently expressed personal misgivings concerning capital punishment). This left Justices William O. Douglas, Potter Stewart, and Byron R. White to cast limited but decisive votes against Georgia’s capital punishment statute. Douglas expressed concerns that the death penalty was applied disproportionately to poor and socially disadvantaged defendants, in effect reading into the Eighth Amendment an equality requirement. Stewart held that the rare imposition of death made capital punishment cruel and unusual in the minority of cases in which it was imposed. White agreed, arguing that its infrequency deprived the death penalty of any deterrent effect or ability to meet the test of retribution. For the first time, the Court had struck down a death sentence as cruel and unusual punishment. However, the long-term impact of Furman depended on the continued support of either Justice White or Justice Stewart, both centrists whose opposition to capital punishment seemed weak. Public reception of Furman was immediate and hostile. Within a few years, thirty-five states had reenacted death penalty statutes purporting to meet the Court’s objections. Three possibilities seemed available in the wake of Furman. States could enact mandatory death penalty statutes, imposing death in all cases where the death penalty was available, without discretion. This seemed to meet the objections of the Douglas, Stewart, and White bloc but would also have resulted in a large number of executions. A second option was to forgo death as a punishment altogether, but

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this seemed politically unlikely given the climate of public opinion. The third option was to enact guided discretion statutes, supplying juries with a host of aggravating and mitigating circumstances that would be considered in a separate sentencing phase of the trial, following a previous determination of guilt. This procedure met the LDF’s second challenge to capital punishment, that the combined procedures for determining guilt and sentence imposed untenable choices on the defense. It also seemed to meet the issue of jury discretion head on, with neither the unpopular abolition of capital punishment nor the increased volume of executions that might follow adoption of mandatory capital punishment laws. These laws came under the Court’s scrutiny in Gregg v. Georgia (1976). Actually a compendium of five cases testing mandatory death penalty statutes in North Carolina and Louisiana and guided discretion statutes in Georgia, Texas, and Florida, Gregg also resulted in a badly fragmented Court. Justices Brennan and Marshall continued their per se opposition to the death penalty. Chief Justice Burger, along with Rehnquist, Blackmun, and White, voted to uphold all five death penalty regimes. As with Furman, the Court’s decision rested on the centrists, now Justices Stewart, Powell, and John Paul Stevens. They approved of Georgia’s death penalty regime, requiring a bifurcated procedure that separated the determination of guilt from the passing of sentence. In addition, before death could be imposed, a jury had to find beyond a reasonable doubt that at least one of ten aggravating circumstances had been met. Mitigating circumstances were also to be considered, and all death sentences were subject to mandatory appeal. Thus, a death penalty regime based on guided jury discretion now passed constitutional muster. The decision for a companion case, Woodson v. North Carolina (1976), specifically banned mandatory death sentences. It is not at all clear that the death penalty regime approved in Gregg is able to meet the objections of jury discretion and arbitrary application of capital punishment that underlie Furman. Although subsequent litigation struck down jury guidelines that were deemed too vague, juries were still called on to consider unique circumstances pertaining to each case. Further inconsistency was introduced into the application of the death penalty through such practices as prosecutorial charging discretion, plea bargaining, and executive clemency. It thus appeared that Gregg marked a changed political sentiment on the part of the Court, perhaps even, as a practical matter, overruling Furman. With the decision in Gregg, the Court signaled a green light to executions. The death penalty moratorium came

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to an end in January of 1977, when the state of Utah executed Gary Gilmore by firing squad.

The Issues

EXECUTIONS IN THE UNITED STATES, 1930-1995 Year or Period

Total White Black

Race and the Death Penalty. The in1930 to 1939 1667 827 816 1940 to 1949 1284 490 781 terest of the LDF in capital punish1950 to 1959 717 336 376 ment should have surprised no one. 1960 to 1967 191 98 93 It was long known that the death 1968 to 1976 0 0 0 penalty was applied most frequently 1977 to 1982 6 5 1 1983 5 4 1 to society’s outcast groups, espe1984 21 13 8 cially the poor and members of mi1985 18 11 7 nority groups. Over half of the con1986 18 11 7 1987 25 13 12 victs executed for all capital crimes 1988 11 6 5 between 1930 and 1995 were Afri1989 16 8 8 can Americans, far exceeding their 1990 23 16 7 1991 14 7 7 proportion of the nation’s popula1992 31 19 11 tion. Even more striking, of the 450 1993 38 23 14 executions for rape between 1930 1994 31 20 11 1995 56 33 22 and 1965, more than 90 percent involved African American convicts. All years 4172 1940 2187 Criminologist Marvin Wolfgang, in Source: U.S. Bureau of the Census, a 1966 study, found that of 119 conStatistical Abstract of the United States: victed rapists executed in twelve 1997. 117th ed. Washington, D.C.: U.S. southern states between 1945 and Government Printing Office, 1997. 1965, 110 were black. The question Note: Excludes executions by military authorities. Figures in “total” column remained as to whether these disinclude races other than white and crepancies could be explained by black. nonracial factors, such as a propensity to commit more heinous crimes. A research team lead by David Baldus studied more than 2,400 criminal homicide cases in Georgia, from 1973 to 1980, tried under the death penalty regime approved in Gregg. Taking account of more than 230 separate characteristics of each case, they employed sophisticated statistical analysis to weigh the effect of each in producing death sentences. Their results found that, when adjusted for legitimate nonracial factors, the race of the defendant did not result in a strikingly disproportionate application of the death penalty. However, a strong correlation was uncovered between the race of the victim and the passing of a capital sentence.

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In raw numbers, white or black killers of white victims were eleven times more likely to receive the death penalty than were killers of African American victims. Even when nonracial variables were factored in, killers of white victims were executed 4.3 times as often as were killers of blacks. The discrepancy was inexplicable, except by the inference that race prejudice continued to affect the death penalty regime, even after Gregg. In fact, the race of the victim proved to be a stronger predictor of a capital sentence than such factors as the defendant’s prior history of violence, that the victim was a police officer, or that the killing occurred during an armed robbery. The supposition drawn from these results was that prosecutors, when faced with the killer of an African American victim, were less likely to seek the death penalty or more likely to accept a plea bargain eliminating death. Alternatively, juries, even guided statutorily by nonracial aggravating and mitigating circumstances, were less likely to impose death for the killing of a black victim, perhaps valuing the life of a black person less highly than that of a white victim. These data formed the basis for the LDF’s next challenge to capital punishment, in McCleskey v. Kemp (1987), as violating both the Eighth Amendment and the equal protection clause of the Fourteenth Amendment. Such a disparate racial impact would seem to call into question the effectiveness of Gregg in eliminating the arbitrary or discriminatory factors in applying the death penalty that had informed Furman. However, writing for the Court, Justice Powell held that to make an equal protection claim, McCleskey had to demonstrate that either the Georgia legislature or the jury in his particular case was motivated by racial animus or a discriminatory purpose. The social background data revealed in the Baldus study were insufficient to make even a prima facie case that McCleskey had personally suffered from racial discrimination and, in any event, were more appropriately considered in a legislative forum. Similarly the discrepancy revealed in the Baldus study was insufficient to demonstrate a violation of the Eighth Amendment because it did not offend society’s evolving standards of decency. Justices Brennan, Marshall, Stevens, and Blackmun dissented. In Furman and Gregg, the Court had sought to remove arbitrary and capricious factors, presumably including racial prejudice, from the application of the death penalty in the United States. However, with McCleskey, the Court appeared to be turning its back on that promise by foreclosing the last avenue for arguing for the per se unconstitutionality of capital punishment. It did find in the Eighth Amendment limits to the kinds of

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crimes that could be deemed capital offenses. In Coker v. Georgia (1977), the Court found a capital sentence disproportionate to the crime of rape and therefore barred by the Eighth Amendment. Similarly, Enmund v. Florida (1982) barred the death penalty for a felony murder in which the defendant did not commit, nor intend or contemplate, the killing. However, this ruling was modified in Tison v. Arizona (1987) to permit sentencing to death of a codefendant in a felony murder in which there was major participation in the felony combined with reckless indifference to human life. These rulings indicate that the Court views the Eighth Amendment as imposing substantive limits on the death penalty, at least concerning the issue of proportionality. At the end of the twentieth century, thirty-eight states authorized the death penalty for first-degree murder. The federal government also authorized death for certain homicides, as well as for espionage, treason, or running a large-scale drug enterprise, but has not carried out a single capital sentence since 1963. As of April, 1999, 3,565 prisoners were on death row in the United States, while only 580 prisoners had been executed since 1977. Death row inmates are overwhelmingly poor and uneducated and disproportionately African American and southern. Many have suffered from inadequate assistance of counsel at trial. The most significant innovation by the Court toward the end of the twentieth century was increasing restrictions on the availability of federal habeas corpus review of state death penalty convictions and sentences. The apparent goal of the Court is to permit the states to apply post-Gregg death penalty law, largely absent federal judicial supervision. Further Reading Bedau, Hugo Adam, ed. The Death Penalty in America: Current Controversies. New York: Oxford University Press, 1997. Cole, David. No Equal Justice: Race and Class in the American Criminal Justice System. New York: New Press, 1998. Constanzo, Mark. Just Revenge: Costs and Consequences of the Death Penalty. New York: St. Martin’s Press, 1997. Haines, Herbert H. Against Capital Punishment: The Anti-Death Penalty Movement in America, 1972-1994. New York: Oxford University Press, 1999. Hanks, Gardner C. Against the Death Penalty: Christian and Secular Arguments Against Capital Punishment. Scottsdale, Pa.: Herald Press, 1977. Latzer, Barry. Death Penalty Cases: Leading U.S. Supreme Court Cases on Capital Punishment. Boston: Butterworth-Heinemann, 1998.

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Mello, Michael A. Dead Wrong: A Death Row Lawyer Speaks Out Against Capital Punishment. Madison: University of Wisconsin Press, 1997. Protess, David. A Promise of Justice: The Eighteen-Year Fight to Save Four Innocent Men. New York: Hyperion, 1998. John C. Hughes

CENSORSHIP Description: The examination of any material in advance of publication, performance, or broadcast with the aim of preventing “objectionable” materials from being distributed Relevant amendment: First Significance: Censorship is commonly used by dictators to prevent the spread of ideas hostile to their rule, but modern democracies abhor censorship of nearly all expression except obscenity, where prior restraints are sometimes allowed Repressive governments such as dictatorships have given censorship, or “prior restraint” (the suppression of materials before publication, performance, or broadcast), a very bad name. It is easy to understand why prior restraint is so important in a dictatorship. If a dictator waits until after publication, the dangerous ideas are already widespread, and extreme penalties may not deter some critics from voicing their opposition to a regime. In modern democracies, on the other hand, censorship is generally shunned. In the United States, censorship is allowed by the federal or state governments (or their agents) only if such prior restraint can be made compatible with the free expression portions of the First Amendment to the U.S. Constitution, which read: “Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble.” The First Amendment divides the free expression of ideas into two major categories: freedom of speech and the press, and freedom of peaceable assembly. Neither speech nor press is to be restrained, but the presence of the word “peaceably” in connection with assemblies indicates that assemblies can be, and routinely are, subject to prior restraint or censorship. Yet even in the case of assembly, prior restraints are allowed only for a reason such as allowing the “free movement of traffic in public ar-

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eas.” They must not be used to block the presentation of ideas simply because they are objectionable to the authorities. Freedom of speech and the press is different from freedom of assembly because of its more passive character, although the U.S. Supreme Court has not always consistently and officially said so. The press, in particular, is regarded as a less dangerous medium for the expression of ideas, since reading is a far more passive activity than speaking to an audience. While it is possible to imagine someone making a speech that would incite a riot, it is very difficult to imagine a crowd reading a newspaper and then rioting. Because speech is frequently given before an assembly, speech falls partially under the First Amendment’s requirement that assembly must be peaceable to avoid being restrained. This requirement rests on a distinction between ideas and actions. Pure ideas, as expressed in the press or in speeches to peaceable assemblies, are fully protected, but the requirement that an assembly must be peaceable may lead to some restraints on speech, even if there are no prior restraints on the press. The essence of freedom of speech and the press is that there shall be no prior restraint—no censorship of any material in advance of its distribution. This requirement clearly implies that there may be punishments or restraints applied afterward, a view that is part of a long Anglo-Saxon legal tradition. In an age when censorship laws were focused against “blasphemy,” John Milton argued in his Areopagitica (1644) against such laws: “Let [Truth] and falshood grapple; who ever knew truth put to the worse in free and open encounter?” By the eighteenth century, the battle against censorship had been sufficiently successful that the great jurist William Blackstone could write in book four of his Commentaries on the Laws of England: “The liberty of the press is indeed essential to the nature of a free state; but this consists of laying no previous restraints upon publications.” This tradition carried over into the colonies and led to the adoption of the First Amendment in 1791. Freedom of the press became an issue only a few years after the passage of the Bill of Rights when the Federalists passed the Alien and Sedition Acts in 1798 to punish their political opponents. Despite considerable controversy, the Federalists justified the acts by saying they did not impose a prior restraint. The political outcry was so great that Federalist John Adams lost the 1800 election to Thomas Jefferson, who pardoned all who had been convicted under the acts. Shortly thereafter the Federalists ceased to be a cohesive political party, and the Alien and Sedition Acts were considered such a black mark that no at-

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tempt was made to pass anything like them for more than a hundred years. Throughout the 1800’s, the common understanding of the First Amendment was that the federal government could not pass a law that restricted freedom of the press. Since the Bill of Rights was interpreted as applying only to the national government, however, sedition laws existed in various states. After the Fourteenth Amendment was passed following the Civil War, a basis for applying the principles of the Bill of Rights to the states was established, although the U.S. Supreme Court did not immediately accept this interpretation. During World War I, Congress passed two acts, the Sedition Act and the Espionage Act, which produced the first “free speech” cases, but no restraints on the press in advance of publication were enacted. Prior Restraint Cases. The first U.S. Supreme Court decision on prior restraint was Near v. Minnesota (1931). Near published an anti-Semitic newsletter in Minneapolis, Minnesota, which charged that local government officials were Jewish-influenced and corrupt. Authorities sought to use a state statute to prevent Near from publishing, but the U.S. Supreme Court held that this was an impermissible prior restraint. Also, for the first time, it applied the free press portion of the First Amendment to state governments, utilizing the due process clause of the Fourteenth Amendment “selectively incorporating” part of the Bill of Rights. The second Supreme Court prior restraint case, New York Times Co. v. United States (1971, the “Pentagon papers” case), involved hundreds of top-secret government documents that were photocopied by Daniel Ellsberg, knowing he was in violation of the security clearance laws. The documents were printed by The New York Times and other newspapers. The documents disclosed U.S. violations of international law and other matters damaging to the government. The Pentagon papers were clearly stolen government property, but the legal question was whether the newspapers could be restrained in advance from publishing them. The Supreme Court ruled against the government by a 6-3 vote. All nine justices upheld the “no prior restraint” concept, but they disagreed whether the restraint was justified by the extraordinary issues in this case. While each judge wrote a separate opinion, three major groups can be distinguished. The first group (justices Hugo Black, William O. Douglas, William Brennan, and Thurgood Marshall) maintained that no circumstances justified any prior restraint. Justices Warren Burger, Harry

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Blackmun, and John Harlan upheld prior restraint but requested more time to examine the documents before deciding whether a permanent restraining order should be issued. Justices Potter Stewart and Byron White, the swing votes who voted with the first four justices to allow publication of the Pentagon papers, believed that the “no prior restraint” presumption was too strong to overrule in this case but held open the idea mentioned in Near that there might be extreme circumstances in which prior restraint would be justified—such as a newspaper’s attempt in wartime to publish the secret route of a naval convoy through submarine-infested waters. Given the Court’s disregard of the U.S. government’s anger and embarrassment at publication of the Pentagon papers, it is hard to imagine circumstances which would justify prior restraint. In two hundred years, the Supreme Court has never found a case that justified prior restraint and, since 1931, has never allowed any state or local government to exercise prior restraint, even when the expression of ideas is embarrassing to the government. Obscenity. Not all ideas are political ideas, and the question of whether censorship can be justified also includes the artistic and scientific arenas. In particular, the Supreme Court has found it necessary to confront obscenity and pornography, particularly when applying the First Amendment to the states, many of which long had restrictive statutes on such subjects. Despite the clear language of the First Amendment that “Congress shall make no law” abridging freedom of the press or speech, there have long been other rights which the Court has counterbalanced against the right of free expression. For example, there is a right of the adult population to avoid being assaulted in public by widespread display of materials that they might regard as offensive. There is an even more important need to protect children from pornographic materials which might damage their growth and development as human beings. Prior restraint is allowable for any pornography involving sexual acts by children, as the Court made clear in New York v. Ferber (1982). Sex acts involving children are against the law in every jurisdiction within the United States. Regarding the publication of pornographic materials depicting adults for the use of other adults in the privacy of their own homes, the Supreme Court has found grounds to provide prior restraint of some materials. It has had great difficulty in doing so in practice, however, principally because of the strong constitutional opposition to prior restraint. Also, al-

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though the Supreme Court has consistently held that obscene materials are not protected under the First Amendment, it has had serious problems defining obscenity. Roth v. United States. In Roth v. United States (1957), the Supreme Court attempted to define obscenity for the first time in the modern era. The first premise of the Court’s Roth decision was that “all ideas having even the slightest redeeming social importance—unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion—have the full protection of the [First Amendment] guarantees.” Because the First Amendment has been interpreted to protect virtually all ideas against prior restraint except obscene ones, the definition of obscenity was crucial, but it proved very difficult. Earl Warren, U.S. Chief Justice from 1953 to 1969, once said that defining obscenity presented the Court with its “most difficult” area of adjudication. In Roth, the Court said that to be obscene, expression had to be “utterly without redeeming social importance.” Obscenity was fully defined by the following phrase: “Whether to the average person applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interests.” “Prurient” was defined as “material having a tendency to excite lustful thoughts.” The Court asserted that “sex and obscenity are not synonymous,” however, because the Court could not equate sex and obscenity without legitimizing the banning of a wide range of artistic, medical, and scientific materials. While there is a certain logic to the Supreme Court’s decision in the Roth case, the decision itself involves a number of words which are not easy to define. Obscenity is difficult to define, but so are the words “lustful” and “prurient.” A number of questions quickly became apparent. How can one decide that something is “utterly without redeeming social importance”? What “community standards” should be followed? Is the community a particular town, a particular state, or the nation as a whole? Moreover, exactly who is an “average person”? Lower courts quickly found that reaching judicial determinations on whether particular works fit within a definition that includes so many vague words was extremely daunting. Ideally, the Supreme Court should provide clear definitions that can serve as workable guidelines for legislators, courts, and attorneys all across the nation. When the Court does not do so, it invites a flood of litigation, because only the Court can determine what its own vague guidelines mean. Since it did not do so in Roth, it found a huge number of

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obscenity cases being presented to it. Furthermore, the Court’s own agreement on the Roth definition was short-lived. Per Curiam Rulings. By 1967, several distinct positions were evident. Justices Black and Douglas maintained that the principle of “no prior restraint” is so strong that neither federal, state, nor local governments have any power to regulate any sexually oriented matter on the ground of obscenity. Justice Harlan took the opposing view that the federal government could control the distribution of “hard-core” pornography by using its enumerated powers and that states were entitled to even greater freedom to ban any materials which state courts had reasonably found to treat sex in a fundamentally offensive manner. A variety of other views were held by the other justices. From 1967 until 1973, the Court followed the practice, established in Redrup v. New York (1967), of issuing per curiam reversals of convictions for the dissemination of obscene materials if at least five members of the Court, applying their separate tests, deemed them not to be obscene. Per curiam decisions are generally unsatisfactory in that they do not include any accompanying opinions as guidance for lower courts. As with vague guidelines, they invite endless litigation. At one point in the struggle to define hard-core pornography, Justice Stewart, with evident frustration, said of obscenity, “I can’t define it, but I know it when I see it.” While this statement became the punch line of many jokes, it was essentially an accurate description of the Court’s approach from 1967 to 1973. The Court was deciding obscenity cases on an individual and retroactive basis, which was unsatisfactory for lower courts, prosecuting attorneys, police officers, defense attorneys, the producers of the materials, and the public. Miller v. California. Sixteen years after Roth a new definition of obscenity was offered in the case Miller v. California (1973) and the companion case Paris Adult Theatre v. Slaton. Since five justices voted for the definition, it became the new definitive holding (or leading case) on the subject, but it proved little better than its predecessor. The new definition made two major changes. First, it specifically rejected the standard “utterly without redeeming social value,” which had been established in Memoirs v. Massachusetts (1966), in favor of a broader standard. The obscenity label can be applied only to a work which, “taken as a whole, appeals to the prurient interest,” which depicts or describes sexual conduct in a “patently offensive way,” and which, “taken as a

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whole, lacks serious literary, artistic, political, or scientific value.” Second, the Court rejected the notion of national community standards in favor of local community standards. The Court explained that the United States “is simply too big and too diverse for this Court to reasonably expect that such standards could be articulated for all 50 States in a single formulation, even assuming the prerequisite consensus exists.” Promptly some communities began defining obscenity very restrictively. A Georgia community banned the 1971 film Carnal Knowledge. The case reached the Supreme Court, and once again, in Jenkins v. Georgia (1974), it was faced with making a decision on a case-by-case basis. The Court held that the film could not be found to appeal to the prurient interest or be found patently offensive under Georgia community standards, thus setting a guideline for the limits of allowable differences in local community standards. Censorship and prior restraint are so alien to the American system that the Supreme Court has found it virtually impossible to apply censorship in any area. On the one hand, the Court acknowledges that adults have a right to be protected from unwanted public obscenity and that children must be protected. On the other, the Court is uncomfortable with any form of prior restraint. It may be that there is no way to write a clear obscenity law, but the Court’s failure to provide clear standards has led to considerable litigation: There have been only two Supreme Court cases concerning prior restraint of political ideas, but there have been hundreds of obscenity cases. The Broadcast Media. The issue of obscenity becomes still more complicated when one addresses the issue of electronic broadcasting. While the freedom to express political ideas is well protected, this protection is not as great for the broadcast media as it is for print media. The reason is that radio and television must use broadcast or microwave frequencies which are considered public property. Therefore the owners of radio and television stations must receive a license from the Federal Communications Commission (FCC). The licensing requirement can be viewed as a form of prior restraint. The government does not seek to control news broadcasts, however, generally granting them the same freedom as the print media; similarly, there is no government control of individual broadcasts of artistic, scientific, or medical materials. Yet broadcasters, knowing that their licenses (which may be extremely lucrative) can be revoked or denied renewal, engage in considerable self-

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censorship, which also occurs in the film industry. Generally, selfcensorship has been sufficiently effective that only a few cases of license nonrenewal exist. Some conservative commentators and politicians have argued that this self-censorship does not go far enough. In fact, a fairly sizeable minority of citizens are concerned by what they describe as a climate of permissiveness with regard to sex and violence, particularly on television. In mid-1995, for example, Congress heatedly debated whether to require manufacturers of television sets to include a “V-chip” that would allow parents to block their children’s viewing of programs with violent or sexual content. Public Live Presentations. Public live presentations fall into the category of assemblies and are therefore subject to the restriction that they must be “peaceable.” Since the question of riots or violent behavior is not often at stake, an issue more often debated is the extent to which governments (primarily local but occasionally state) can restrain public live presentations of a sexual nature. Public displays in areas of public traffic, where such presentations might assault the sensibilities of some adults or be viewed by children, are widely prohibited by indecent exposure laws. The problem is more complex for public live presentations in private businesses or in publicly or privately owned and operated theaters. Those who favor censorship of sexually explicit materials have been most successful in restricting sexually explicit presentations in establishments that sell alcoholic beverages or those in which activities that come close to prostitution can be documented. For other privately owned establishments open exclusively to adults, local governments have generally found it difficult to write statutes or ordinances which are specific enough to avoid being declared unconstitutionally vague without at the same time being declared unconstitutional for restraining freedom of expression. Even publicly owned and operated theaters have been forced to permit their use by productions that include nudity. Officials in Chattanooga, Tennessee, discovered this in the 1970’s when they attempted to bar the presentation of the musical Hair from being performed in a publicly owned and operated theater (Southeastern Promotions, Ltd. v. Conrad, 1975). Further Reading The best book of general scholarship on the subject is Henry J. Abraham and Barbara A. Perry’s Freedom and the Court (6th ed. New York: Oxford

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University Press, 1994). For a concise, thoughtful summary of the reasons it is so difficult to fashion a rule or definition of pornography, see Kent Greenwalt’s “Pornography,” in his Speech, Crime, and the Uses of Language (New York: Oxford University Press, 1989). Wallace Mendelson’s The American Constitution and Civil Liberties (Homewood, Ill.: Dorsey Press, 1981) contains useful excerpts from important Supreme Court cases on censorship. For a detailed history of the free speech clause, see Stephen A. Smith’s “The Origins of the Free Speech Clause,” in Raymond S. Rodgers, Free Speech Yearbook: The Meaning of the First Amendment, 17911991 (Carbondale, Ill.: Southern Illinois University Press, 1991). Richard L. Wilson

CHILLING EFFECT Description: Indirect negative effect on protected speech resulting from certain laws or government policies Relevant amendment: First Significance: Otherwise unobjectionable laws and policies are sometimes invalidated by U.S. courts because they might “chill,” or discourage, speech protected by the First Amendment The U.S. Supreme Court has often repeated that freedom of speech needs “breathing room.” Laws that serve appropriate ends may nevertheless creep so close to a regulation of protected speech that they discourage people from speaking for fear of adverse legal consequences. The concern for chilling effects on speech therefore surfaces in a variety of First Amendment contexts. For example, the Court has frequently overturned vague regulations of speech which—if written more clearly— would probably have survived constitutional challenge. Vague speech regulations have an “in terrorem” effect. Because they do not distinguish crisply between permissible and impermissible speech, such regulations risk deterring or chilling speech protected by the First Amendment as well as speech that government might otherwise be free to limit. Fearful of exposing themselves to government sanction, individuals might refrain from engaging in speech that falls within the First Amendment’s umbrella of protection. To preserve First Amendment values, the Court routinely overturns such chillingly vague statutes. In Smith v. Goguen

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(1974), for example, the Court held unconstitutional a statute making it a criminal offense to treat the United States flag “contemptuously.” The statute, according to the Court, was impermissibly vague, since what is “contemptuous to one man may be a work of art to another.” A concern for possible chilling effects on protected speech also lies at the core of the overbreadth doctrine. An overbroad statute is one that is designed to restrict or punish speech that is not constitutionally protected. As it is drafted, however, an overbroad statute reaches not only unprotected speech but speech that is guarded by the First Amendment. The overbreadth doctrine allows individuals to complain of a statute’s overreaching even if the speech of these individuals is otherwise unprotected. The doctrine essentially allows such individuals to champion the cause of unnamed speakers whose protected speech might be subject to sanction under an overly broad statute. For example, in Houston v. Hill (1987), the Supreme Court invalidated as substantially overbroad a Houston, Texas, ordinance making it a crime to “assault, strike or in any manner oppose, molest, abuse or interrupt any policeman in the execution of his duty.” The Court acknowledged that some speech directed against police officers might be punished. However, it ruled that the statute reached too broadly, since “the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.” By overreaching, therefore, the local ordinance would inevitably have the effect of stifling such protected criticism. As such, the ordinance was overturned as substantially overbroad. Richard L. Wilson

CIVIL RIGHTS AND LIBERTIES Description: The phrase “civil liberties” refers to the personal freedoms that are guaranteed against government infringement. In contrast, “civil rights” denotes those individual and group rights that require governmental action for enforcement. Relevant amendments: First through Ninth, Fourteenth Significance: The words “liberty” and “right” can be used interchangeably to some extent, without doing violence to the meaning they have acquired over the ages. The “Bill of Rights” in the U.S. Constitution is, in fact, a list of liberties. However, the phrases “civil liberties” and “civil

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rights” have now acquired sufficiently distinctive meanings, each with a history of its own. They should be treated as discrete concepts. “Congress shall make no law respecting an establishment of religion.” So begins the First Amendment. The Bill of Rights is a repository of people’s liberties in that it defines the areas where people are to be left alone to live their lives free of impediments. The word “Congress” is never again mentioned in this document, but neither is there any reference to any other legislative power. Writing in Barron v. Baltimore in 1833, Chief Justice John Marshall observed that there was a unity of purpose in these amendments, for they were proposed and ratified at the same time. As such, the rights guaranteed in these amendments were all to be “understood as restraining the power of the general government, not as applicable to the States.” In short, these freedoms did not provide any protection against state and local abuses. The person who gave us the Bill of Rights had warned us that the principal source of mischief against personal liberties would be the states and their local communities, and not the national majority. If James Madison could have had his way, the Bill of Rights would have applied to the states as well. His original draft had an amendment that had the following words: “No state shall infringe the equal rights of conscience, nor the freedom of speech, or of the press, nor of the right of trial by jury in criminal cases.” Madison conceived this paragraph to be “the most valuable amendment on the whole list.” However, the conservatives in the Senate were afraid of what the new central government might do someday to undermine the sovereignty of the states which they represented. Madison’s favorite amendment was rejected decisively. Eventually, the nation came around to embracing Madison’s vision, though more out of desperation in the wake of the Civil War than as a concession to his argument. Not only did the Fourteenth Amendment define U.S. citizenship, with a view to protecting the rights of individuals from abuse by local majorities, it also contained this critical language, which would have pleased the Father of the Bill of Rights: “No State shall make or enforce any law which shall abridge . . .” Nevertheless, the actual use of the Bill of Rights against state and local abuses was not to materialize until 1925, when, in Gitlow v. New York, the Supreme Court began to read, in earnest, certain provisions of that document into the due process clause of the Fourteenth Amendment in a series of actions which would come to be known as “selective incorporation.”

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Contemporary magazine illustration of people celebrating the passage of the Civil Rights Act of 1866 outside the gallery of the House of Representatives. (Associated Publishers)

The Fourteenth Amendment, ratified in 1868, did more than pave the way for the “nationalization of the Bill of Rights.” Like the other two Civil War amendments—the Thirteenth (1865), banning slavery, and the Fifteenth (1870), prohibiting the denial of the right to vote for reasons of “race, color, or previous condition of servitude”—the Fourteenth called the nation’s attention to a whole new problem known as “civil rights.” The blacks were no longer slaves, but they were not yet free, certainly not equal with the whites. They were entitled to their rights. However, who was to deliver to them those rights? Congress responded to this challenge with a series of legislative enactments, all under the fitting name of “Civil Rights Act,” beginning with the bold, sweeping and highly controversial Civil Rights Act of 1866, which defined citizenship and guaranteed rights related to contracts and property ownership. The fierce debate over the constitutionality of this law did not end until Congress passed a constitutional amendment which included some of these controversial provisions. The Fourteenth Amendment became the basis for Congress’s second major assault upon racial injustice. Enacted in the name of the amendment’s equal protection clause, the Civil Rights Act banned all discrimination in public facilities and accommodations owned and operated by corporations and private individuals. However, the Supreme Court declared the law unconstitutional in the

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Civil Rights Cases of 1883, on the grounds that the amendment’s prohibitions were aimed at the states, not corporations and private individuals. Congress had no power to prescribe criminal penalties for private acts of discrimination under this amendment, said the Court, against a bitter dissent from Justice John Harlan, who read the three Civil War amendments far more broadly than his brethren. Congress did not enact another civil rights law until 1957. The 1957 and 1960 Civil Rights Acts made the Justice Department the command post in the war on racial discrimination. Then came the historic Civil Rights Act of 1964, by far the most comprehensive civil rights law in the nation’s history. Although it was intended on the whole as an enforcement of the Fourteenth Amendment’s equal protection mandate, its sweeping public accommodations provisions in Title II had to be given some other justification so as not to repeat the mistake of 1875. Congress this time decided to rely on the commerce clause, and later that year, in two separate cases, Title II of the 1964 Civil Rights Act was handily upheld by the Supreme Court as an exercise of Congress’s commerce power. With that ruling, the Supreme Court left the 1883 precedent undisturbed, merely noting that it was not “apposite” here. The 1964 Civil Rights Act was followed a year later by another monumental statute, the

President Dwight D. Eisenhower (second from right) at the swearing-in ceremony of the President’s Commission on Civil Rights, which was authorized by the Civil Rights Act of 1957. (Library of Congress)

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Voting Rights Act, whose contested provisions, dealing with literacy devices and federal examiners, were upheld by the Supreme Court in 1966, in South Carolina v. Katzenbach, as a “valid” exercise of the federal government’s power under the Fifteenth Amendment. Further Reading Curtis, Michael Kent. No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights. Durham, N.C.: Duke University Press, 1986. Hall, Kermit L., et al. American Legal History: Cases and Materials. New York: Oxford University Press, 1991. Karst, Kenneth. Belonging to America: Equal Citizenship and the Constitution. New Haven, Conn.: Yale University Press, 1989. Veit, Helen E., et al., eds. Creating the Bill of Rights: The Documentary Record from the First Federal Congress. Baltimore, Md.: Johns Hopkins University Press, 1991. Sugwon Kang

CLEAR AND PRESENT DANGER TEST Description: First legal standard established by the Supreme Court in 1919 to determine whether speech posed such a direct and imminent threat to society that it could be punished without violating the free speech guarantees of the First Amendment to the U.S. Constitution. Relevant amendment: First Significance: Originally adopted to uphold the convictions of radicals during World War I, the clear and present danger test was transformed into a standard protecting a wide spectrum of controversial, offensive, and even hateful speech. Although the First Amendment was ratified in 1791, thereby guaranteeing that Congress could make no law abridging freedom of speech, freedom of the press, or other personal rights, it was not until 1919 that the Supreme Court squarely addressed the limits of free speech. Fearing the impact of disloyal speeches, leaflets, and newspaper articles during World War I, Congress passed the Espionage Act of 1917,

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which prohibited obstruction of the war effort. By 1919 three separate cases had reached the Court in which Eugene Debs, leader of the Socialist Party; Charles Schenck, an official of the Socialist Party; and Jacob Frohwerk, the publisher of a socialist newspaper, had all been convicted of violating the Espionage Act and sentenced to jail. In each case, the Court voted unanimously to uphold the convictions, despite arguments that the antiwar activists’ statements and publications were constitutionally protected under the First Amendment. The task fell to Justice Oliver Wendell Holmes to write the opinions explaining the Court’s decisions. By 1919, Holmes, at age seventy-six, had served on the Court for seventeen years and had acquired a reputation as one of the finest legal minds in the country. In Schenck v. United States, Holmes wrote that the “question in every case is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” Without using the words “clear and present danger,” the companion opinions in Debs v. United States and Frohwerk v. United States, also written by Holmes, upheld the convictions. A Reconsideration. In the coming months, however, Holmes and his friend and colleague, Justice Louis D. Brandeis, seriously reconsidered the importance of free speech in a democratic society, even in times of war. In Abrams v. United States (1919), while the majority of the Court upheld the convictions of a group of Russian immigrants for distributing pamphlets condemning President Woodrow Wilson for sending U.S. troops to fight against the Bolshevik Revolution in Russia, Holmes and Brandeis joined in a vigorous dissent. Speaking for the Court, Justice John H. Clarke relied on Holmes’s own clear and present danger test. The leaflets violated the law because they had been distributed “at the supreme crisis of the war” and amounted to “an attempt to defeat the war plans of the Government.” Moreover, the general strike advocated by the Abrams defendants would have necessarily hampered prosecution of the war with Germany. In dissent, Holmes did not repudiate his earlier opinions. Instead, he denied that “the surreptitious publishing of a silly leaflet by an unknown man” created “a clear and imminent danger that will bring about forthwith certain substantial evils that the United States constitutionally may seek to prevent.” Tilting the clear and present danger test away from an instrument in service of restricting speech and toward a shield protecting

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The Issues In his opinion on Abrams v. United States, Justice John H. Clarke drew on Oliver Wendell Holmes’s definition of “clear and present danger.” (Collection of the Supreme Court of the United States)

speech, Holmes argued that the First Amendment protected the expression of all opinions “unless they so imminently threatened immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.” A Tool for Protection. The clear and present danger test fell out of favor until the late 1930’s when for more than a decade the Court used it to protect speech in a wide array of situations. However, in the midst of the Cold War and the mounting fear of communism, in Dennis v. United States (1951), the Court ignored the immediacy requirement of the clear and present danger test and upheld the convictions of eleven Communist Party leaders for conspiring to advocate the violent overthrow of the government. In 1969 the Supreme Court adopted the Holmes-Brandeis dissent in Abrams. In Brandenburg v. Ohio, the Court reversed the conviction of a Ku Klux Klan leader under a state statute prohibiting criminal syndicalism. Consequently, a half century after it was first articulated, the clear and present danger test matured into a modern barrier to censorship, setting a high threshold protecting a wide spectrum of diverse and controversial

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speech. The Court held that the guarantees of the First Amendment “do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” In words reminiscent of Holmes’s prescient dissent in Abrams, the Court significantly strengthened constitutional protection for freedom of expression. Stephen F. Rohde

COMMERCE CLAUSE Description: The clause in the U.S. Constitution giving Congress the power to regulate trade among the states Relevant amendment: Tenth Significance: The Supreme Court has upheld congressional use of the commerce clause as justification for a broad range of federal legislation Article I, section 8 of the U.S. Constitution states that Congress “shall have the power . . . to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” The part of this clause dealing with the states was extremely important in enabling the United States to develop an effective, integrated economic system, but its influence reaches far beyond the realm of a narrow definition of commerce. The first Supreme Court case involving the commerce clause, Gibbons v. Ogden (1824), established that it applies to interstate commerce but not to commerce within one state. Chief Justice John Marshall’s opinion in the case broadly defined commerce to include all commercial “intercourse,” not only the traffic of goods. In the late nineteenth century, the commerce clause was cited as justification for congressional establishment of the Interstate Commerce Commission and for the Sherman Antitrust Act (1890). In the early twentieth century the federal government began using the commerce clause as the basis for national legislation involving crime, public safety, and morality, as in the Mann Act (1910) and the Automobile Theft Act of 1915. Until the 1930’s, the Supreme Court maintained a distinction between manufacturing and commerce, but in 1937 it began to interpret the commerce clause broadly enough to allow regulating the

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manufacture of goods intended for interstate transportation and sale. In the years since World War II, there has been considerable federal legislation based on the commerce clause. One of its most remarkable uses was in justifying civil rights legislation in the 1960’s. In cases such as Heart of Atlanta Motel v. United States (1964), the Supreme Court held that, because racial discrimination has a harmful effect on interstate commerce, Congress can pass and enforce antidiscrimination laws.

COMMERCIAL SPEECH Description: Ideas expressed in advertising Relevant amendment: First Significance: Commercial speech historically has been among the least protected forms of expression In the twentieth century the trend changed somewhat to offer increased protection to commercial speech. Canadian courts, for example, consider commercial speech within the constitutional protection afforded all speech, and seek to balance the interest in free speech against the reasons offered for the limitation on the speech. American courts apply a more complex three-step analysis to commercial speech restrictions. After Central Hudson Gas and Electric Corp. v. Public Service Commission (1980), a court must first determine whether the speech is protected by the First Amendment of the U.S. Constitution. To be protected, the speech must promote lawful activity and must not be misleading. States may ban altogether commercial speech promoting illegal activities (such as illegal drug use) and advertising that is inherently misleading. But states may not completely ban advertising that is only potentially misleading. In the second step, a court examines whether the asserted governmental interest in regulation is substantial. This requires some important state interest, and courts have acknowledged that protection of citizens and preservation of community aesthetics are both suitable interests. In the final step of the analysis, the court examines whether the regulation directly advances the governmental interest asserted and whether it is not more extensive than is necessary to serve the asserted interest. A court will apply an intermediate standard of review, inquiring whether the “fit” between the asserted governmental interest and the regulation of speech

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is reasonable. A state need not employ the least restrictive means to accomplish its interests, but it must select a means narrowly tailored to achieve the desired objective without unreasonable burdens on commercial speech.

COMSTOCK ACT Description: A law amending postal legislation to enforce the prohibition against using the mails to send sexually suggestive material Relevant amendment: First Significance: The most restrictive obscenity statute ever passed by Congress, the Comstock Act limited the availability of even mild forms of pornography until the courts expanded First Amendment protection in the 1950’s In 1865, Congress passed the Postal Act, making it a crime to use the mails for sending any “publication of a vulgar or indecent character.” Anthony Comstock, a tireless crusader against pornography, successfully lobbied Congress to make the postal regulations more restrictive. The re-

Anthony Comstock. (Library of Congress)

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sulting 1873 legislation created special agents with wide discretion to seize obscene matter and provided for criminal penalties of up to five years’ imprisonment for the first offense. Books and magazines, including serious novels such as Theodore Dreiser’s Sister Carrie (1900), were proscribed if they contained any sexual references considered “lewd” or “lascivious” by Victorian standards. By the 1930’s, the Comstock Act had been amended to become less restrictive, but much of its language, while reinterpreted, continued into the 1990’s. The Supreme Court affirmed the constitutionality of the law’s principles in numerous cases after 1877, but beginning with the landmark case Roth v. United States (1957), the Court liberalized the law by insisting on a narrow definition of obscenity. Thomas T. Lewis

CONSCIENTIOUS OBJECTION Description: Claim of exemption from compulsory military service, or at least from combat, based on ethical, moral, or religious grounds. Only claims based on religious principles raise constitutional issues. Relevant amendment: First Significance: Controversies surrounding conscientious objection are most likely to occur when the nation is at war and begins conscription, especially during an unpopular war. The Supreme Court struggled with controversies over how conscientious objector status is to be defined and who is exempted from military obligation. Conscription to raise an armed force dates to the American Revolution, when some states imposed requirements of military service on their male citizens. Both North and South resorted to a military draft during the Civil War. In the twentieth century, conscription became well established as an efficient means for Congress to carry out its Article I authority “to raise and support armies.” Thus far, the requirement to answer the call to arms was confined to men, and the decision to exempt from obligatory military service on religious grounds was left to the political discretion of Congress. However, when Congress has adopted policies respecting conscientious objection, the constitutional problems that have resulted have been many and complex.

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Religious Objectors. Controversies over conscientious objection arise from the unprecedented religious diversity of the American population, including a number of pacifist sects whose adherents avoid all participation in warfare and others permitting their adherents to participate only in “just wars.” Quite apart from the practical observation that pacifists make ineffectual soldiers, it might be thought that the First Amendment’s free exercise of religion clause would require Congress to exempt religious pacifists from military service, rather than force citizens to act contrary to religious conscience. However, the Supreme Court, in the Selective Draft Law Cases (1918), rejected such a claim, calling “its unsoundness . . . too apparent to require us to do more.” Even so, it had historically been the practice to grant exemptions to members of specific sects, at least when the latter were sufficiently prominent to secure the respect of the surrounding community. For example, New York’s first constitution, adopted in 1777, exempted Quakers from service, although it also authorized the legislature to impose special fees in lieu of service. The Draft Act of 1864 and that of 1917 offered exemptions for members of pacifist sects, although the latter authorized their conscription into noncombat roles. This deference to religious principle generates its own constitutional problems, however. When membership in a pacifist sect becomes the basis for granting exemption from the draft, Congress would seem to violate the establishment of religion clause. Although the precise meaning of this clause is uncertain, all agree that it requires Congress to avoid discriminating among sects. Identifying Quakers, or any other specific sects, as recipients of conscientious objector status might be viewed as creating a privilege on the basis of religious belief. Even without naming specific sects, Congress faces a dilemma in finding a religiously neutral way of limiting the exemption, lest it become universal. Thus, the crux of the problem is to define a category of persons who might claim exemption from conscription in a way that violates neither the free exercise nor the establishment of religion clauses of the First Amendment. Any attempt to do so exposes the potential conflict between these two clauses. A Careful Approach. Perhaps in recognition of this dilemma, the Court usually avoided constitutional rulings in conscientious objector cases, purporting to resolve them by statutory interpretation. However, despite its ruling in the 1918 draft law cases, in the twentieth century, the Court clearly attempted to interpret draft statutes in a way that makes them con-

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form to the complex demands of the First Amendment. It is equally clear that Congress struggled with this issue but was less sensitive to the requirements of the establishment of religion clause than the Court. The Draft Act of 1917, for example, extended conscription to all ablebodied men, exempting members of any “well-recognized religious sect or organization” that forbade its “members to participate in war in any form.” This formulation privileged adherents of well-recognized religions, compared with religions lacking such organization or doctrinal clarity, thereby conferring conscientious objector status on Quakers but denying it to equally sincere objectors who did not belong to any such organization. It also denied conscientious objector status to those whose religious principles included distinctions between just and unjust wars, such as Roman Catholics. The Selective Training and Service Act of 1940 sought to avoid the problem of sectarian discrimination by dropping the requirement that the conscientious objector be a member of a well-recognized sect. An individual had only to object to war in any form based on “religious training and belief.” This standard was refined in 1948, when Congress defined religious training and belief to include “an individual’s belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but [excluding] essentially political, sociological, or philosophical views or a merely personal moral code.” Even with these enhancements, however, the definition of conscientious objection failed to achieve religious neutrality because it excluded religions that did not include a supreme being (such as Buddhism) and religions that were not monotheistic (such as Hinduism). In United States v. Seeger (1965), the Court sought to remedy this problem by interpreting this definition of religious training and belief as including any “sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for the exemption.” Although this interpretation sought to eliminate the problem of discrimination among sects, it did so by extending conscientious objector status to many persons holding “political, sociological or philosophical views or merely a personal moral code,” people to whom Congress had specifically denied such an exemption, as the Court recognized in Welsh v. United States (1970). However, in Gillette v. United States (1971), the Court held that exemption from service could still be denied to those whose religiously based objection did not include war in all forms. Thus, those who believed in fighting only just wars still

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could not qualify for conscientious objector status. In Clay v. United States (1971), the Court established a three-part test by which conscientious objector claims were to be evaluated, requiring that the claim be based on a religious belief as defined in Seeger, that the objection is to war in all forms, and that the claim is sincere. Further Reading Choper, Jesse H. Securing Religious Liberty: Principles for Judicial Interpretation of the Religion Clauses. Chicago: University of Chicago Press, 1995. Morgan, Richard E. The Supreme Court and Religion. New York: Free Press, 1972. Moskos, Charles C., and Whiteslay, eds. The New Conscientious Objection: From Sacred to Secular Resistance. New York: Oxford University Press, 1993. Pfeffer, Leo. Church, State, and Freedom. Boston: Beacon Press, 1967. Tribe, Lawrence. American Constitutional Law. 2d ed. Westbury, N.Y.: The Foundation Press, 1990. John C. Hughes

CONTRACT, FREEDOM OF Description: Also known as “liberty of contract,” the doctrine that individual persons and business firms should be free to enter into contracts without undue interference from government. Relevant amendments: Fifth, Fourteenth Significance: From 1897 to 1937, a probusiness Supreme Court used the freedom of contract doctrine to overturn numerous economic regulations designed to protect the interests of workers and the general public. The Supreme Court recognized that the Fifth Amendment’s due process clause protected some substantive rights to property and liberty as early as Scott v. Sandford (1857). The drafters of the Fourteenth Amendment, among other goals, wanted to protect the liberty and equality of African Americans to enter into legally binding contracts involving property and employment. With the growth of state regulations in the late nineteenth century, therefore, it was not surprising that proponents of laissez-faire

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capitalism seized on the Fourteenth Amendment’s due process clause as a means of promoting substantive liberties in matters of business and economics. Justice Stephen J. Field and jurist Thomas M. Cooley were among the most influential proponents of this substantive due process approach, which was soon accepted by several state courts. After debating the concept on numerous occasions, a majority of the Court finally accepted the idea that the Fourteenth Amendment protected a substantive freedom of contract in Allgeyer v. Louisiana (1897). In this case, the Court invalidated a Louisiana law that made it illegal for residents of the state to enter into insurance contracts by mail with out-ofstate companies. Writing for the majority, Justice Rufus W. Peckham declared that U.S. citizens enjoyed the freedom to make contracts relevant to the pursuit of their economic interests. The Lochner Era. Through the four decades following Allgeyer, the Court looked on freedom of contract as a normative ideal and required states to assume a high burden for proving that any restraint on the liberty was justified on the basis of accepted police powers, such as protecting the public’s safety, health, or morality. The most prominent cases usually involved legislation regulating terms of employment, such as maximum working hours and minimum wages. In Lochner v. New York (1905), for example, a five-member majority overturned a labor law limiting the number of hours that bakers could work each week, and the majority insisted that employees should have the freedom to work as many hours as they wished. In Adair v. United States (1908) and Coppage v. Kansas (1915), the Court struck down federal and state laws that outlawed yellow dog contracts (employment contracts in which workers agree not to join unions). The majority of the Court was not impressed with the inequality in bargaining positions between employers and workers. Justice Oliver Wendell Holmes wrote vigorous dissents in such cases. Nevertheless, the freedom of contract doctrine was used in ways that would later be considered progressive. In Buchanan v. Warley (1917), for example, the concept was a major reason for the Court’s overturning of a St. Louis segregation ordinance that prohibited whites from selling residential housing to African Americans. The Court often accepted the constitutionality of restraints on the freedom of contract, but only when a majority concluded that a restraint was a reasonable means for enforcing legitimate police powers. For example, the Court in Holden v. Hardy (1898) upheld a Utah law that made it illegal

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for miners to work more than eight hours a day because of the manifest dangers of underground mining. Likewise, in Muller v. Oregon (1908), the Court determined that the special health needs of women provided justification for limiting their industrial workday to ten hours. Yet, in Adkins v. Children’s Hospital (1923), a bare majority overturned a District of Columbia’s minimum wage for women. The obvious inconsistency between Muller and Children’s Hospital reflected the inherent subjectivity in all decisions grounded in substantive due process. Judicial Revolution of 1937. The Court began to moderate its position on freedom of contract after Charles Evans Hughes became chief justice in 1930. During President Franklin D. Roosevelt’s first term, nevertheless, four conservative justices—dubbed the “Four Horsemen”—remained firmly committed to the Lochner/Adair line of thinking. In Morehead v. New York ex rel. Tipaldo (1936), Owen J. Roberts joined the four to overturn New York’s minimum-wage law. During the 1936 election, Morehead was widely denounced and was one of several cases that led to Roosevelt’s Court-packing plan. For several reasons, Roberts abandoned the Four

Chief Justice Charles Evans Hughes. (Collection of the Supreme Court of the United States)

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Horsemen in West Coast Hotel Co. v. Parrish (1937), which upheld Washington State’s minimum-wage law. Speaking for a majority of five, Hughes acknowledged that the Constitution protected liberty, but he defined liberty as the absence of arbitrary restraints. Two weeks later, the Court abandoned its Adair precedent in National Labor Relations Board v. Jones and Laughlin Steel Corp., upholding the Wagner Act protections of labor’s right to organize and join unions. After the Court reversed itself in 1937, it never again struck down a public policy based on the freedom of contract doctrine. In effect, it almost entirely abandoned any judicial supervision based on the doctrine—a development that is part of its movement toward exercising only minimal scrutiny of all economic regulations. Since then, the Court has upheld economic regulations only when they have appeared to be rationally related to legitimate governmental interests. The Court might resurrect the freedom of contract doctrine if it were to find some governmental regulation of contracts totally unreasonable or arbitrary. Although the Court lost interest in freedom of contract after 1937, it did not entirely stop reading substantive due process guarantees into the Fifth and Fourteenth Amendments. Further Reading Corwin, Edward. Liberty Against Government: The Rise, Flowering, and Decline of a Famous Judicial Concept. Reprint. Westport, Conn.: Greenwood Press, 1978. Ely, James, Jr. The Guardian of Every Other Right: A Constitutional History of Property Rights. New York: Oxford University Press, 1992. Seigan, Bernard. Economic Liberties and the Constitution. Chicago: University of Chicago Press, 1980. Thomas T. Lewis

COUNSEL, RIGHT TO Description: The opportunity for defendants in federal criminal proceedings to be represented by lawyers. Relevant amendment: Sixth Significance: The right to legal counsel gives people accused of crimes access to expert help in defending themselves in the complex arena of a

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criminal trial. In 1963 the Supreme Court interpreted the Fourteenth Amendment as extending this element of due process to defendants in state trials. Although the Sixth Amendment of the U.S. Constitution appeared to contain the right to legal counsel, the exact meaning of that provision was unclear until interpreted by Congress and the Supreme Court. In 1790, while the Sixth Amendment was still being ratified, Congress passed the Federal Crimes Act, which required that defendants in federal capital cases be provided with legal representation. The Court extended this same protection to all federal criminal cases, regardless of whether they involved the death penalty, in Johnson v. Zerbst (1938). Special Circumstances Doctrine. Although some states required the appointment of lawyers even before the Sixth Amendment was ratified, there was no national code of due process that obligated the states to provide legal help for people accused of crimes. It was not until 1932 that the Court imposed even a limited requirement on state courts to provide legal counsel, and as late as 1963, some states still refused to pay for lawyers for poor defendants. In Powell v. Alabama (1932), the first Scottsboro case, the Court, by a 7-2 majority, overturned Alabama’s convictions of nine African American youths for raping two white women. The young men had been given a pro forma trial and sentenced to death. Although they had received courtappointed lawyers, the attorneys provided a weak defense. The trial judge behaved in an overtly biased fashion toward the defendants, and evidence that might have cast doubt on Alabama’s case was never presented by the young men’s lawyers. In his majority opinion, Justice George Sutherland did not extend the right to counsel to all state criminal cases, but he did establish the “special circumstances” doctrine. The Court ruled that in state capital cases where there were special circumstances, such as the illiteracy of the defendant, state trial judges were obligated to appoint competent lawyers to represent the accused. For more than thirty years, the special circumstances doctrine would be the law of the land, requiring state courts to appoint legal counsel in only the most obvious and serious situations of defendant need. A Reconsideration. Although the Court had the opportunity to apply the right to counsel to all state criminal cases in Betts v. Brady (1942), it de-

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clined to do so, sticking to the case-by-case scheme it had prescribed in the Powell case. It was not until the 1963 case of Gideon v. Wainwright that the Court finally retired the special circumstances doctrine. Clarence Gideon was a drifter with a history of committing petty crimes. He was accused of breaking into a pool hall and stealing some money and liquor. Although Gideon asked the trial judge to appoint him a lawyer, the judge, relying on Betts, refused to do so. After a failed attempt at defending himself, Gideon was sentenced to a long term in prison. Gideon appealed his conviction on Sixth and Fourteenth Amendment grounds to the Supreme Court. The Court had been looking for just the right case to overrule what most of them considered a flawed decision in Betts v. Brady. To reverse Betts, the Court needed a case in which an intelligent person, denied a lawyer, had been unable to successfully defend himself. Because Gideon was an intelligent man, there could be no question that the trial judge might have improperly denied him special circumstances status. Likewise, because Gideon was white, there could be no question of possible racial discrimination to muddy the waters. The charges against Gideon were not complicated. Gideon was an intelligent man, with a sympathetic, even helpful trial judge, who failed miserably to defend himself against noncomplex charges. This made Gideon the perfect case to overrule the special circumstances doctrine, and on March 18, 1963, a unanimous Supreme Court, speaking through Justice Hugo L. Black, applied the right to counsel to all state criminal proceedings. In Argersinger v. Hamlin (1972) and Scott v. Illinois (1979), the Court extended the right to counsel to misdemeanor trials that resulted in jail sentences but not to those that resulted in fines or lesser punishment. The Pretrial Period. Gideon left many important questions unanswered, including at what point in the criminal investigation a suspect who requested a lawyer had to be provided with one. In Escobedo v. Illinois (1964), the Court ruled that a suspect asking for counsel during a police interrogation had to be granted representation. In Miranda v. Arizona (1966), the Court went a step further, requiring the police to advise suspects of their right to a lawyer even if they did not ask to speak with an attorney. According to the Court, a person suspected of committing a crime should be provided with a lawyer at the moment that individual ceases being one of several possible suspects and becomes the principal focus of the criminal investigation. The decisions in these

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Cruel and unusual punishment / 173

two cases showed that, in the Court’s collective mind, the Sixth Amendment right to counsel was firmly connected to the Fifth Amendment’s protection from compulsory self-incrimination. Further Reading Garcia, Alfredo. The Sixth Amendment in Modern American Jurisprudence. Westport, Conn.: Greenwood, 1992. Horne, Gerald. “Powell v. Alabama”: The Scottsboro Boys and American Justice. New York: Franklin Watts, 1997. Lewis, Anthony. Gideon’s Trumpet. New York: Vintage, 1989. Wice, Paul B. “Miranda v. Arizona”: “You Have the Right to Remain Silent . . .” New York: Franklin Watts, 1996. Marshall R. King

CRUEL AND UNUSUAL PUNISHMENT Description: A key provision of the Eighth Amendment to the U.S. Constitution prohibiting the most shockingly barbarous punishments and conditions of incarceration. Relevant amendment: Eighth Significance: Although elusive and elastic, the concept of cruel and unusual punishment has enabled the Supreme Court to adjust criminal punishments according to varying standards of decency and proportionality. Borrowing from the English Bill of Rights of 1688, the framers of the U.S. Bill of Rights (1791) included in the Eighth Amendment to the U.S. Constitution a prohibition against “cruel and unusual punishment.” Like so much else in the Constitution, and particularly in the Bill of Rights, the meaning, scope, and limitations of these figurative words were left to be determined by the Supreme Court. The results have been inconsistent, conflicting, and enigmatic. The Court has struggled over whether the prohibition sets absolute and immutable standards that persist over time or instead expresses a goal of proportionality that varies depending on the circumstances. Con-

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sequently, the body of Court decisions interpreting the prohibition suffers from a lack of cohesion, allowing succeeding justices to fill the words with their own values and sensibilities. During its first century, the Court paid scant attention to the prohibition on cruel and unusual punishment. In 1910 the Court held, in Weems v. United States, that the crime of being an accessory to the falsification of a public document could not justify a sentence of twelve to twenty years at hard labor in chains and a permanent deprivation of civil rights. It was not until the 1970’s that the Court dwelt seriously on the prohibition, most prominently in the context of the death penalty. In Furman v. Georgia (1972), a fractured Court, with all nine justices writing separate opinions, struck down capital punishment with a 5-4 vote. Only Justices William J. Brennan, Jr., and Thurgood Marshall found that the death penalty was categorically unconstitutional based on the prohibition against cruel and unusual punishment, which the two justices construed as a flexible device reflecting “evolving standards of decency” based on public opinion, jury verdicts, and legislative enactments. However, four years later in Gregg v. Georgia (1976), a plurality of the Court found that the prohibition did not invariably preclude capital punishment but only prohibited torture, gratuitously painful methods of execution, or punishments not officially authorized by law. In noncapital cases, the Court has sent mixed signals. In Rummel v. Estelle (1980), a 5-4 majority held that sentencing a man to a life sentence for three felonies committed over nine years for crimes totaling $229.11 was not cruel and unusual. However, in Solem v. Helm (1983), again on a 54 vote, the Court invalidated a life sentence for a man, with prior nonviolent felony convictions, found guilty of passing a hundred-dollar check on a nonexistent account. Inevitably, the Court will continue to grapple with the dilemma of giving meaning to one of the most opaque provisions in the Bill of Rights. Stephen F. Rohde

DOUBLE JEOPARDY Description: Guarantee, stated in the Fifth Amendment, that if a person has been acquitted or convicted of an offense, he or she cannot be prosecuted a second time for that same offense.

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Double jeopardy / 175

Relevant amendment: Fifth Significance: For nearly two centuries the Supreme Court decided very few double jeopardy cases, but in the last three decades of the twentieth century, it decided many. The second clause of the Fifth Amendment, part of the Bill of Rights, states “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” For the first part of the existence of the United States, federal criminal cases were not appealed to the Supreme Court, so it had no federal double jeopardy cases. In addition, in Barron v. Baltimore (1833), the Court said that the provisions of the Bill of Rights limited the power of only the federal government and were inapplicable to the states. Consequently, there were no state court double jeopardy cases for the Court to review. Not until Benton v. Maryland (1969) did the Court conclude that the double jeopardy clause was applicable to the states, relying on the selective incorporation doctrine of the due process clause of the Fourteenth Amendment. Since that time, so many, and sometimes contradictory, double jeopardy cases came before the Court that Chief Justice William H. Rehnquist referred to this area of the law as a Sargasso Sea—one in which even a skillful navigator could become entangled and lost. The Basic Protection. Jeopardy—the immediate threat of conviction and punishment—attaches in a criminal case when a jury is sworn in or, if there is no jury, when a judge begins to hear evidence. Whether jeopardy has attached is important because events occurring before that time, such as dismissal of the charges, will not preclude a subsequent prosecution; a dismissal of the charges after jeopardy has attached would preclude their being brought again. A defendant who has been acquitted cannot be reprosecuted for that offense. Even with a relatively weak case, a prosecutor who could try the case multiple times might be able to perfect the presentation of witnesses and evidence so that eventually a jury would agree to convict. The Court found that such a result would be fundamentally unfair and would violate double jeopardy in Ashe v. Swenson (1970). After an acquittal, no matter how strong the state’s evidence may have been, the defendant may not be forced to undergo the stress and expense of another prosecution for that crime, regardless of whether the verdict in the second case is a conviction or an acquittal.

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Similarly, the Court ruled that a person cannot be tried again after having previously been convicted of the same offense in Brown v. Ohio (1977). However, in United States v. Ball (1896), the Court found that a necessary exception to this rule does allow the reprosecution of an individual whose conviction was reversed on appeal. There are many reasons why a conviction might be reversed, such as the improper admission of prejudicial evidence or inaccurate instructions to the jury. In these situations, after the reversal of the first conviction, the case could be retried without using the inadmissible evidence and with proper instructions to the jury, and the retrial would not be double jeopardy. Exceptions. The doctrine protects against only successive criminal prosecutions or punishments; it does not prohibit a criminal prosecution after a civil action or a civil action after a criminal action. For example, property used in the commission of certain crimes, such as houses, cars, and other vehicles used in the manufacture and distribution of illegal drugs, is subject to forfeiture to the government. Such forfeiture actions usually are deemed to be civil rather than criminal punishments. Therefore, in United States v. Ursery (1996), the Court ruled that a person’s having to forfeit his or her house and car to the government because they were used in a drug transaction is not the imposition of double jeopardy, although the individual had previously been criminally convicted and sentenced for the same drug transaction. Similarly, those who have served the entire sentence for conviction of a sexual offense, such as rape or child molestation, may subsequently be adjudicated as sexually violent predators and ordered confined and treated until it is safe for them to be released. Because the subsequent adjudication is deemed civil and not criminal, the Court, in Kansas v. Hendricks (1997), found there is no double jeopardy, even if such sexual offenders might end up being confined for the rest of their lives. The dual sovereignty doctrine is another major exception to the protection against double jeopardy. The basic guarantee is that the same sovereign, or government, will not prosecute or punish an individual twice for the same offense. There is no double jeopardy violation, however, if different sovereigns prosecute an individual for the same offense. For these purposes, the federal government of the United States and the government of a given state, such as California, are deemed to be separate sovereigns. Cities and counties derive their governmental authority from that of the state in which they are located, so that neither a city nor a county is

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Due process, procedural / 177

considered a separate sovereign from the state. Consequently, prosecutions for the same offense in, for example, Chicago municipal court and Illinois state courts would violate double jeopardy. In Heath v. Alabama (1985), the Court ruled that because the states are separate sovereigns from one another, prosecutions for the same offense by two separate states do not violate double jeopardy. With traditional crimes, such as murder or rape, it would be unusual for two states to have sufficient contact with the crime to have jurisdiction to prosecute it, but many conspiracies, especially those involving illegal drugs, have sufficient contacts with several states to confer jurisdiction on more than one. Nonetheless, dual sovereignty prosecutions involving two or more states are relatively rare. Further Reading Lafave, Wayne, and Jerold Israel. Criminal Procedure. St. Paul: West Publishing, 1985. McAninch, William. “Unfolding the Law of Double Jeopardy.” South Carolina Law Review 44 (1993): 411. Miller, Lenord. Double Jeopardy and the Federal System. Chicago: University of Chicago Press, 1968. William Shepard McAninch

DUE PROCESS, PROCEDURAL Description: Right not to be deprived by government of life, liberty, or property without notice and an opportunity to be heard according to fair procedures. Relevant amendment: Fifth Significance: The Supreme Court considers procedural due process to be one of the most fundamental constitutional rights. The Supreme Court recognized that the constitutional right to procedural due process derives historically from the Magna Carta (1215), which prohibited the English monarch from depriving a certain class of subjects of their rights except by lawful judgment of their peers or by the law of the land. When the United States gained its independence, language modeled on the Magna Carta provision was included in some of the state constitutions. Soon after the ratification of the U.S. Constitu-

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tion, the Fifth Amendment was adopted as part of the Bill of Rights. This amendment, applicable to the federal government, provided in part that “no person shall . . . be deprived of life, liberty, or property, without due process of law.” In 1868 the Fourteenth Amendment formulated the same prohibition with regard to state—and, by implication, local—governments. The due process clauses apply to criminal as well as civil procedures. However, because other constitutional protections are triggered in criminal matters by specific provisions of the Fourth, Fifth, Sixth, and Eighth Amendments, the Court has often invoked these more specific constitutional provisions in criminal procedure cases when it is unnecessary to address the more general requirements of the due process clauses. Basic Principles. The Court ruled, in Collins v. City of Harker Heights (1992), that due process clauses provide a guarantee of fair procedure in connection with governmental deprivations of life, liberty, or property. In Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank (1999), it held that procedural due process does not prevent governmental deprivation of life, liberty, or property; it merely prevents such deprivation without due process of law. Furthermore, the governmental deprivation must be deliberate. According to its finding in Daniels v. Williams (1986), a civil action against a governmental entity cannot be predicated on a due process theory if the governmental conduct at issue was merely negligent. The two major components of fair procedure are notice and an opportunity to be heard. A primary purpose of the notice requirement is to ensure that the opportunity for a hearing is meaningful, as the Court determined in West Covina v. Perkins (1999). In both judicial and quasi-judicial proceedings, the Court determined that due process requires a neutral and detached judge in the first instance in Concrete Pipe and Products of California v. Construction Laborers Pension Trust (1993). However, where an initial determination is made by a party acting in an enforcement capacity, it found that due process may be satisfied by providing for a neutral adjudicator to conduct a de novo review (complete rehearing) of all factual and legal issues in Marshall v. Jerrico (1980). The Court often (but not always) evaluates procedural due process issues by considering the three factors brought out in Mathews v. Eldridge (1976): the private interest affected by the official action; the risk of erroneous deprivation of such interest through the procedures used and the

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Due process, procedural / 179

probable value, if any, of other procedural safeguards; and the relevant governmental interest. Criminal Procedure. The Court applied the due process clauses in the criminal law area in cases in which other constitutional provisions do not apply. For example, the Court held that the adjudication of a contested criminal case in a mayor’s court violates due process where the mayor’s executive responsibilities may create a desire to maintain a high flow of revenue from the mayor’s court in Ward v. Village of Monroeville (1972). It also held that a child in delinquency proceedings must be provided various procedural due process protections in In re Gault (1967). The Court also made two rulings regarding placement in mental institutions. In Vitek v. Jones (1980), it held that a convicted felon serving a sentence in prison may not be transferred to a mental institution without appropriate procedures to determine whether he or she is mentally ill, and in Foucha v. Louisiana (1992), it determined that a person found not guilty of a crime by reason of insanity who is accordingly confined in a mental hospital is entitled to constitutionally adequate procedures to establish the grounds for continued confinement when the original basis for the confinement no longer exists. Other Applications. The Court applied the procedural component of the due process clause in many other contexts. For example, in United States v. James Daniel Good Real Property (1993), it held that, absent exigent circumstances, due process requires notice and a meaningful opportunity to be heard before the government can seize real property subject to civil forfeiture. In Goldberg v. Kelly (1970), the Court held that welfare recipients could not be deprived of their benefits without procedural due process protections. Similarly, in Memphis Light, Gas and Water Division v. Craft (1978), the Court established federal due process procedures for termination of public utility service to customers in states that have a just cause requirement for such termination. In Cleveland Board of Education v. Loudermill (1985), the Court determined that tenured classified civil servants were entitled to at least some procedural due process before termination, such as notice of allegations and opportunity to respond, coupled with a full posttermination hearing. However, it found that defamatory statements by governmental officials, in the absence of other governmental action, do not trigger due process analysis in Paul v. Davis (1976).

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Further Reading American Bar Association. Due Process Protection for Juveniles in Civil Commitment Proceedings. Chicago: American Bar Association, 1991. Decker, John F. Revolution to the Right: Criminal Procedure Jurisprudence During the Burger-Rehnquist Court Era. New York: Garland, 1993. Galligan, Denis J. Due Process and Fair Procedures: A Study of Administrative Procedures. New York: Oxford University Press, 1996. Roach, Kent. Due Process and Victims’ Rights: The New Law and Politics of Criminal Justice. Toronto: Toronto University Press, 1999. Alan E. Johnson

DUE PROCESS, SUBSTANTIVE Description: The doctrine that the liberty protected by the due process clauses of the Fifth and Fourteenth Amendments encompasses more than the procedural rights owed by the government when it seeks to punish someone for a crime. Relevant amendment: Fifth Significance: Substantive due process has become the chief means by which the Supreme Court defines and extends the constitutional rights enjoyed by people in the United States. One of the intents of the framers of the Fourteenth Amendment was to protect the property and contract rights of newly freed slaves from state law. The amendment states that the state shall not take away any person’s life, liberty, or property without “due process of law.” The phrase “due process” usually meant proper legal procedure, especially in criminal law. However, in Allgeyer v. Louisiana (1897), the Supreme Court, most of whose members believed strongly in laissez-faire capitalism, decided that part of the “fundamental liberty” protected by the due process clause was a substantive right to make contracts. This new right was frequently used by the Court to strike down state economic regulations with which the justices disagreed. For example, in Lochner v. New York (1905), the Court declared unconstitutional a New York law restricting the number of hours per day that bakers could work because it interfered with the right of the bakers to contract with their employers for their services. Justice Oliver Wendell Holmes filed a powerful dissenting opinion in the case. The

The Issues

Court also found a few other fundamental rights applicable to the states. In Gitlow v. New York (1925), for example, it held that freedom of speech, a First Amendment right, limited state governments. However, Holmes’s reasoning in the Lochner dissent eventually prevailed. In 1936 the Court upheld a Washington state minimumwage law in Morehead v. New York ex rel. Tipaldo. Soon after Morehead, several older, more conservative justices retired from the court. President Franklin D. Roosevelt appointed progressive justices, and a new era of judicial self-restraint began. To many observers, it appeared unlikely that substantive due process guarantees would surface again.

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While Justice George Shiras, Jr., was serving on the Supreme Court from 1892 to 1903, he frequently used the substantive due process doctrine to overturn economic regulations. (Library of Congress)

Substantive Due Process Reborn. The Court’s interest in substantive liberty was rekindled in the 1960’s. On November 1, 1961, the Planned Parenthood League of Connecticut opened a center in New Haven. On November 10, its executive director, Estelle Griswold, and its medical director, Dr. Harold Buxton, were arrested for violating the Connecticut birth control statute. This law, which had been on the state’s books since 1879, prohibited the use of birth control devices and the provision of birth control information. Griswold and Buxton were the first people ever to have been charged under the statute. An earlier attempt to challenge the law had been defeated when the Court refused to take jurisdiction because no one had ever been prosecuted. Griswold and Buxton were convicted and appealed to the Court. The Court’s opinion in Griswold v. Connecticut, written by Associate Justice William O. Douglas for a 7-2 majority, struck down the Connecticut statute. Douglas reasoned that many constitutional provisions as well as many of the Court’s cases had established a zone of privacy into which states are forbidden to intrude. The First Amendment, which protects speech and religion, also protects privacy in associations; the Third Amendment prevents the government from forcing the populace to

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house soldiers; and the Fourth Amendment limits “unreasonable” warrantless intrusions into the home. The Fifth Amendment includes some substantive liberties. Finally, the Ninth Amendment establishes that there may be constitutional rights that are not explicitly set forth in the Constitution. Taken together, Douglas argued, these provisions establish a constitutional marital privacy right that the Connecticut birth control statute infringed. The two dissenters in the case, Associate Justices Hugo L. Black and Potter Stewart, argued that the decision would return the Court to the discredited era of substantive due process in which the justices had written their policy preferences into the Constitution. Black and Stewart pointed out that there was no explicit textual support in the Constitution for the new right of marital privacy. They were particularly perturbed by the majority’s use of the Ninth Amendment, which seemed completely open ended to them and would give the Court limitless authority to define rights beyond the text of the Constitution. The same right to receive and use contraceptive devices was extended to unmarried persons in Eisenstadt v. Baird (1972). In this case a Massachusetts statute was declared unconstitutional by the Court on two grounds: It unconstitutionally discriminated against unmarried people, and it collided with “a fundamental human right” to control conception. Abortion. The following year, conception and privacy rights were further extended by the Court in Roe v. Wade (1973). This famous case established that a pregnant woman has a constitutional right to an abortion on demand during the first trimester of pregnancy. Justice Harry A. Blackmun, writing for the seven-justice majority, argued that the Court’s substantive due process cases had established a right of privacy that “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy” and that outweighs the state’s interest in protecting prenatal life, at least during the first trimester of pregnancy. Blackmun turned to historical medical and legal thinking about pregnancy and abortion to help define the extent of abortion rights. Some state regulation of abortions is permitted in the second trimester, and abortion may be prohibited altogether in the third. The two dissenters, Justices William H. Rehnquist and Byron R. White, maintained that there is no “fundamental” right to an abortion on demand and referred to the historical tradition in England and the United States of prohibiting abortion. They argued that the Court should defer

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Due process, substantive / 183

to the wishes of the majority, at least in the absence of a traditional fundamental right. Roe v. Wade is perhaps the boldest assertion of substantive due process rights by the Court. It has been immensely controversial and has resulted in a great deal of political action in opposition to the Court’s decision and in occasional violence directed at abortion clinics, physicians, and patients. In the years since Roe, the Court has revisited the case often. Although the decree has been modified somewhat, the central holding—that a pregnant woman has a right to an abortion on demand in the first trimester—remains intact. Limit on New Rights. At the end of the twentieth century, Roe v. Wade represented the high-water mark of the Court’s protection of substantive liberties. The Court declined to extend the concept to protect homosexual sodomy in Bowers v. Hardwick (1986). A Georgia statute that prohibited anal or oral sex was challenged by Michael Hardwick, a gay man who had been threatened with prosecution under the law after he was found in bed with another man in the course of a police drug raid. In his opinion for the majority, Justice Byron R. White wrote that Sodomy was a criminal offense at common law and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights. In 1868 when the Fourteenth Amendment . . . was ratified, all but 5 of the 37 States in the Union had criminal sodomy laws. In fact, until 1961, all 50 States outlawed sodomy, and today, 24 States and the District of Columbia continue to provide criminal penalties for sodomy performed in private and between consenting adults. . . . Against this background, to claim that a right to engage in such conduct is “deeply rooted in this Nation’s history and tradition” or “implicit in the concept of ordered liberty” is, at best, facetious.

White also pointed out that Griswold, Eisenstadt, and Roe had all spoken to the right to decide whether or not to bear children. This crucial element is absent in Bowers. Four justices—Harry A. Blackmun, William J. Brennan, Jr., Thurgood Marshall, and John Paul Stevens—argued that the case was really about a “fundamental right to be let alone,” and that the Court’s earlier privacy decisions established just that. Although Bowers is a 5-4 decision, the issue did not appear again before the Court. The Georgia supreme court struck down the statute in question on independent state constitutional grounds in 1999.

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The Court resisted attempts to get it to establish substantive rights to die or to assisted suicide. In Cruzan v. Director, Missouri Department of Health (1990), the Court refused to order the removal of life-support equipment from Nancy Cruzan, a young woman in a “persistent vegetative state” as a result of injuries suffered in an automobile accident. The majority, perhaps unwilling to further politicize the Court’s work in the wake of the controversy surrounding Roe v. Wade, made it clear that it preferred to allow state governments to resolve these newly arising life and death questions. Similarly, in 1997 the court refused to hear a claim that an Oregon assisted-suicide law is unconstitutional. The “new” substantive due process has allowed the Supreme Court to define new individual constitutional rights. So far these have been limited to substantive rights already found in the First Amendment and additional reproductive privacy rights. The doctrine is very controversial because every time the Court limits state power, it is acting in an antimajoritarian way. It is not clear to the public why the right to an abortion is somehow “fundamental” while the “bedroom privacy” argued for in the Georgia sodomy case is not. Nothing appears to illuminate these decisions besides the wishes of the justices. The Constitution itself neither explicitly establishes these rights nor implies them with any clarity. The absence of textual support for these decisions puts perception of the Court’s legitimacy at risk. Further Reading The property law and contract clause background of substantive due process is well discussed in The Guardian of Every Other Right: A Constitutional History of Property Rights by James Ely, Jr. (New York: Oxford University Press, 1992). Private Property and the Limits of American Constitutionalism: The Madisonian Framework and Its Legacy by Jennifer Nedelsky (Chicago: University of Chicago Press, 1990) provides less technical coverage of some of the same topics. There is a vast literature on the “true” meaning of the Fourteenth Amendment and whether it does or does not “incorporate” the Bill of Rights. The classic argument for the incorporationist position is The Supreme Court in United States History by Charles Warren (Boston: Little, Brown, 1937), while the opposition is best represented by Charles Fairman’s The Fourteenth Amendment and the Bill of Rights: The Incorporation Theory (New York: Da Capo Press, 1970). A more recent work suggesting curtailing the judiciary’s role is The Fourteenth Amendment and the Bill of Rights by Raoul Berger (Norman: University of Oklahoma Press,

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1989). An argument supporting the Court’s activities may be found in Freedom and the Court: Civil Rights and Liberties in the United States by Henry J. Abraham and Barbara A. Perry (6th ed., New York: Oxford University Press, 1994). Similarly the legitimacy of the privacy decisions and the natural law threads of thought that produced them have engendered enormous comment. One balanced work is The Supreme Court and the Second Bill of Rights: The Fourteenth Amendment and the Nationalization of Civil Liberties by Richard C. Cortner (Madison: University of Wisconsin Press, 1981). Robert Jacobs

ELASTIC CLAUSE Description: Last clause of Article I, section 8, of the U.S. Constitution, authorizing Congress to make all laws necessary and proper for exercising its enumerated powers and any other power granted by the Constitution to the national government. Relevant amendment: Tenth Significance: After an 1819 Supreme Court decision, the elastic clause provided the basis for the doctrine of implied powers, stretching the powers of the national government beyond those specifically granted by the Constitution. In 1791, when advising President George Washington on the constitutionality of establishing a national bank, Thomas Jefferson and others opposed to a strong national government maintained that Congress was limited to exercising those powers expressly granted by the Constitution, for example, the power to coin money. All other powers were reserved for the states. Jefferson argued that the necessary and proper clause imposed additional limits on the powers of Congress. The clause limited any use of powers not expressly granted by the Constitution except when such powers were absolutely necessary or indispensable to the exercise of an enumerated power. A national bank, for example, was unconstitutional both because the Constitution did not expressly delegate the power to create corporations to Congress and because a bank was not an indispensable means for achieving Congress’s legitimate ends. A broader interpretation of the clause, Jefferson argued, would effectively create a national government with unlimited power.

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Alexander Hamilton. (National Portrait Gallery, Smithsonian Institution)

Alexander Hamilton and others opposed Jefferson’s strict construction of the clause, maintaining that the Constitution established an independent national government that, although exercising limited powers, was fully sovereign within the scope of its powers. Hamilton argued that the elastic clause had to be broadly interpreted as granting whatever additional powers would assist Congress in carrying out its enumerated powers. The clause allowed Congress to do not just what was indispensable but also whatever was convenient or helpful to achieving its ends. The incorporation of a bank, for example, was constitutional because it was a useful means for Congress to carry out its delegated power to collect taxes. When the controversy over the incorporation of the Second Bank of the United States reached the Supreme Court in McCulloch v. Maryland (1819), Chief Justice John Marshall transformed Hamilton’s loose construction of the clause into constitutional law. In his opinion, he stated that if the ends were legitimate and within the scope of the Constitution, all means that were appropriate and not prohibited, as well as consistent with “the letter and spirit” of the Constitution, were constitutional. His decision meant that the Constitution did not limit the federal government’s powers to those expressly delegated, but included powers implied by Congress’s freedom to choose the means by which it would carry out its responsibilities.

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Espionage Acts / 187

Further Reading Fisher, Louis. The Politics of Shared Power: Congress and the Executive. College Station: Texas A&M University Press, 1998. Gunther, Gerald. John Marshall’s Defense of “McCulloch v. Maryland.” Stanford, Calif.: Stanford University Press, 1969. Joseph V. Brogan

ESPIONAGE ACTS Description: Laws passed during World War I outlawing the unauthorized transmission of information that might injure the nation’s defense and banning a wide range of expressions of opinion critical of governmental policies or symbols during wartime. Relevant amendment: First Significance: Espionage Act prosecutions led to the first significant attempts by the Supreme Court to interpret the free speech provisions of the First Amendment, including the original espousal of the clear and present danger test. On June 15, 1917, two months after the United States entered World War I, Congress passed the Espionage Act. In addition to outlawing a wide variety of acts that fit the commonsense definition of “espionage,” including the gathering, transmission, or negligent handling of information that might harm U.S. defense efforts, the law forbade, during wartime, the willful making or conveying of false information with intent to interfere with the nation’s armed forces or to promote the success of its enemies, as well as willful attempts to cause insubordination, disloyalty, mutiny, or refusal of duty within the military or the obstruction of military recruitment or enlistment. In practice, this law was used as the springboard for massive prosecutions of antiwar speeches and publications of all kinds across the United States, based on the theory that many such viewpoints were false and, in any case, aimed at undermining recruitment or other aspects of the war effort. Despite the sweeping language and even more sweeping prosecutions associated with the 1917 law, a far more draconian amendment to the Espionage Act, sometimes known as the Sedition Act, was enacted in 1918 in response to complaints that the original law was not stringent enough

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to suppress antiwar sentiment. The 1918 amendments outlawed virtually all conceivable criticism of the war, including any expressions of support for “any country with which the United State is at war” or that opposed “the cause of the United States therein.” Also banned was the oral or printed dissemination of all “disloyal, profane, scurrilous, or abusive language” about the “form of government” of the country, the Constitution, the flag, the military, and military uniforms, as well as any language intended to bring any of the above into “contempt, scorn, contumely, or disrepute.” Under these laws, more than two thousand people were indicted for written or verbal criticism of the war and more than one thousand were convicted, resulting in more than one hundred jail terms of ten years or more. No one was convicted under the espionage acts during World War I for spying activities. The 1918 amendments to the Espionage Act were repealed in 1920. Although the original 1917 law remains in effect, it was virtually never used after World War I to prosecute expressions of opinion (partly because the 1940 Smith Act included more updated sedition provisions); it has, however, been used in cases involving alleged theft of information, including in the prosecutions of Julius Rosenberg and Ethel Rosenberg during the Cold War and the Vietnam War-era prosecution of Daniel Ellsberg for dissemination of the Pentagon Papers. Court Rulings. The Supreme Court handed down six rulings concerning the constitutionality of Espionage Act prosecutions in 1919-1920, during a severe “red scare.” In every case, it upheld lower court convictions. Although the Court’s rulings no doubt reflected the anticommunist climate, they had long-term significance because they were the first cases in which the Court sought to interpret the free speech clauses of the First Amendment and thus helped shape decades of subsequent debate and interpretation of this subject. In Schenck v. United States (1919), the Court upheld the conviction (under the original 1917 law) of a group accused of seeking to obstruct enlistment in the armed forces by mailing antidraft leaflets. Despite the lack of evidence that Schenck’s mailings had any effect whatsoever, the Court, in a famous ruling penned by Justice Oliver Wendell Holmes, rejected Schenck’s First Amendment claims. Holmes wrote that although the defendants would have been within their constitutional rights in saying what they did in ordinary times, the character of “every act depends upon the circumstances in which it is done.” Just as “the most stringent protection of free speech would not protect a man in

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falsely shouting fire in a theater and causing a panic,” the question was always whether the expression was used in such circumstances and was of such a nature as to create a “clear and present danger ” that it would cause the “substantive evils” that Congress has the right to prevent. In Abrams v. United States (1919), a second landmark case (based on the 1918 amendment), the Court upheld the conviction of a group of defendants who had thrown from a New York City rooftop leaflets critical of U.S. military intervention against the new Bolshevik government in Russia. This case became known especially because of a dissent by Holmes, who essentially maintained that no clear and present danger had been demonstrated and that Congress could not constitutionally forbid “all effort to change the mind of the country.” In words that became famous both for their eloquence and because, after 1937, most Court rulings in First Amendment cases reflected their sentiment more than the those of the majorities in either Abrams or Schenck, Holmes declared that U.S. constitutional democracy was based on giving all thought an opportunity to compete in the free trade in ideas, and as long as that experiment remained part of the Constitution, Americans should be “eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.” In the only significant Espionage Act case involving First Amendment claims to be decided by the Court after 1920, a Court majority reflected Holmes’s Abrams dissent. In Hartzel v. United States (1944), involving a man who had mailed articles attacking U.S. policies during World War II to Army officers and draft registrants (circumstances almost identical to Schenck), the Court reversed Hartzel’s conviction on the grounds that there was no proof he had willfully sought to obstruct the activities of the armed forces. Further Reading Chafee, Zechariah. Free Speech in the United States. New York: Atheneum, 1969. Goldstein, Robert Justin. Political Repression in Modern America: 1870 to the Present. Boston: G. K. Hall, 1978. Polenberg, Richard. Fighting Faiths: The Abrams Case, the Supreme Court, and Free Speech. New York: Viking Penguin, 1987. Robert Justin Goldstein

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EXCLUSIONARY RULE Description: Judicially created doctrine proscribing the admissibility at trial of evidence obtained illegally through violation of a defendant’s constitutional rights. Relevant amendments: Fourth, Fifth Significance: The Supreme Court ruling in 1914 excluded the use of physical evidence gathered through unreasonable search or seizure, and later rulings prohibited any evidence obtained in violation of the Fifth Amendment right against self-incrimination, the Sixth Amendment right to counsel, and Fifth and Fourteenth Amendment rights to due process of law. The exclusionary rule, as applied to Fourth Amendment search and seizure provisions, originated with the Supreme Court’s 1914 decision in Weeks v. United States. Although no emergency conditions existed, police officers had twice conducted nonconsensual, warrantless searches of Freemont Weeks’s home, obtaining letters and documents that were later used as evidence against him over his objections at trial. Weeks was ultimately convicted, and the Supreme Court addressed his appeal. In a unanimous opinion, the Court noted that the Framers of the Constitution intended through the passage of the Bill of Rights to protect the American people from the general warrants that had been issued under the authority of the British government in colonial times. The Court declared that the courts, which are charged with the support of the Constitution, should not sanction the tendency of those who enforce the criminal laws of the country to obtain conviction by means of unlawful seizures. The Court concluded that if letters and private documents can be seized illegally and used in evidence against a citizen accused of an offense, the protection of the Fourth Amendment against unreasonable searches and seizures is of no value. This newly minted rule was strengthened by Silverthorne Lumber Co. v. United States (1920), and Agnello v. United States (1925), which made clear that illegally acquired evidence could not be used by the government, regardless of the nature of the evidence. However, the mandatory exclusion of illegally obtained evidence pertained only to federal law enforcement and trials. Although the Court eventually agreed in Wolf v. Colorado (1949) that the due process clause of the Fourteenth Amendment pro-

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hibited illegal state governmental searches and seizures, it initially maintained that the states did not necessarily have to use the exclusionary rule as a method of enforcing that right. The states were allowed to come up with other safeguards to protect the constitutional rights of their citizens. Silver Platter Doctrine. The incorporation of the prohibitions of the Fourth Amendment into the due process clause of the Fourteenth Amendment did not secure compliance by state law enforcement officers. In fact, because no real means of regulating unlawful state law enforcement behavior existed, state law enforcement agents cooperated with federal agents by providing them with illegally seized evidence, which was admissible in federal court because it was not obtained by federal agents. This practice became known as the “silver platter doctrine” because federal agents were being served up evidence much like food on a platter. The silver platter doctrine was denounced by the Court in Elkins v. United States (1960), which disallowed the admission of evidence obtained by state officers during a search that, if conducted by federal officers, would have violated a defendant’s Fourth Amendment rights. The Court decided that it hardly mattered to victims of illegal searches whether their rights had been abridged by federal agents or by state officers, and that if the fruits of an illegal search conducted by state officers could no longer be admitted in federal trials, no incentive would exist for federal and state agents to cooperate in such abhorrent schemes. Partially because of state law enforcement officers’ disregard for the Fourth Amendment’s proscriptions, in Mapp v. Ohio (1961), the Court reconsidered its stance on extending the exclusionary rule to state action. Mapp v. Ohio. In 1957 Cleveland, Ohio, police officers went to Dollree Mapp’s home with the goal of finding and questioning a bombing suspect. When the officers requested entry, Mapp refused to let them in without a search warrant. The officers returned a few hours later and forcibly entered Mapp’s house. A struggle ensued; officers handcuffed Mapp and carried her upstairs, then searched her entire house, including the basement. They found obscene materials during their search, and she was charged and convicted of possessing them. During her trial, no warrant was introduced into evidence. The Ohio supreme court upheld Mapp’s conviction, although it acknowledged that the methods used to obtain the evidence offended a sense of justice. In the Mapp majority opinion, the Court deplored the futility of pro-

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tecting Fourth Amendment rights through remedies such as civil or criminal sanctions. It noted the failure of these remedies and the consequent constitutional abuses and suggested nothing could destroy a government more quickly than its failure to observe its own laws. The Court declared that if the Fourteenth Amendment did not bar improperly seized evidence, the Constitution would consist of nothing more than empty words. In addition, more than half of the states had already adopted the exclusionary rule through either statutory or case law. Therefore, the Court ruled that the exclusionary rule applied to the states as well as the federal government. This avoided the incongruity between state and federal use of illegally seized evidence. Through Mapp, the Court altered state criminal trial procedures and investigatory procedures by requiring local officials to follow constitutional standards of search and seizure or suffer exclusion of evidence at trial. Rationale for the Rule. Some legal experts theorize that the exclusionary rule is a natural outgrowth of the Constitution. The government cannot provide individual rights without protecting them, and the exclusionary rule provides this function. Therefore, the rule is an implicit part of the substantive guarantees of the Fourth Amendment prohibition against unreasonable search and seizure, the Fifth Amendment right against selfincrimination, the Sixth Amendment right to counsel, and the Fifth and Fourteenth Amendment rights to due process. The exclusionary rule also involves the concept of maintaining judicial integrity. The introduction into evidence of illegally gathered materials must be proscribed to maintain judicial integrity and deter police misconduct. The most common reason invoked for assertion of the exclusionary rule is that it effectively deters constitutional violations and that this deterrent effect is crucial to the vitality of the constitutional amendments. Beginning with United States v. Calandra (1974), the Court viewed the rule as primarily a judicial creation designed to deter police misconduct. Therefore, the Court felt free to balance the costs of excluding evidence against the benefits of the rule’s effect as a deterrent and produced an ever-expanding list of judicially acknowledged exceptions to the exclusionary rule. Exceptions to the Rule. After 1961, when the Court held that the states must apply the exclusionary rule to state investigatory and trial procedures, the rule came under increasing attack by those who argued that it

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exacts too great a price from society by allowing guilty people to either go free or to receive reduced sentences. The Court, reflecting societal division over the exclusionary rule, fashioned a number of exceptions to it. For example, in Calandra, the Court refused to allow a grand jury witness the privilege of invoking the exclusionary rule in refusing to answer questions that were based on illegally seized evidence, as any deterrent effect that might be achieved through application of the rule was too uncertain. For the same reason, the Court also held that illegally seized evidence may be admitted at trial in civil cases (United States v. Janis, 1976) and when it would “inevitably” have been discovered through other legal means (Nix v. Williams, 1984) as well as used to impeach a witness’s credibility (United States v. Havens, 1978) and against third persons (United States v. Paynor, 1980). However, what most eroded the exclusionary rule was the good faith exception, first approved for criminal cases by the Court in United States v. Leon (1984). The good faith exception permitted the use of illegally acquired evidence if the officers who seized it did so in good faith. In Leon, the Court found no reason to apply the exclusionary rule to a situation in which an officer relied on a search warrant issued by a neutral magistrate that later was found not to be supported by probable cause. The Court reasoned that in such a case, the exclusion of evidence would have no deterrent effect on police officers and would exact too great a price from society. In Illinois v. Krull (1987), the Court ruled that the exclusionary rule did not bar the admissibility of evidence seized in good faith reliance on a statute, subsequently found to be unconstitutional, which authorized warrantless administrative searches. In 1995 the Court again extended the good faith exception when it held in Arizona v. Evans that the exclusionary rule does not require suppression of evidence seized in violation of the Fourth Amendment because of inaccurate information based on a court employee’s clerical errors. In Evans, a police officer made an arrest following a routine traffic stop when his patrol car computer erroneously indicated there was an outstanding misdemeanor warrant for Evans’s arrest. When the issue of suppression reached the Court, it again applied the rationale of Leon. There was neither any evidence that court employees were inclined to ignore or subvert the Fourth Amendment nor any basis for believing that application of the rule would have an effect on the future behavior of court employees. Therefore, the Court decided that it would not serve the purposes of justice to apply the exclusionary rule in Evans.

194 / First Amendment absolutism

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Further Reading Joel Samaha discusses the history of the exclusionary rule, rationales that justify it, and its social costs and deterrent effects in Criminal Procedure (4th ed., St. Paul, Minn.: West Publishing, 1999). For basic information regarding the exclusionary rule and its exceptions, see Louis Fisher’s Constitutional Rights: Civil Rights and Civil Liberties (2d ed., New York: McGraw-Hill, 1995), Lee Epstein and Thomas G. Walker’s Constitutional Law for a Changing America: Rights, Liberties, and Justice (3d ed., Washington, D.C.: Congressional Quarterly, 1998), Craig Ducat and Harold Chases’s Constitutional Interpretation: Rights of the Individual (6th ed., St. Paul, Minn.: West Publishing, 1996), and Joan Biskupic’s The Supreme Court and Individual Rights (3d ed., Washington, D.C.: Congressional Quarterly, 1997). Rebecca Davis

FIRST AMENDMENT ABSOLUTISM Description: Position that protections given by the First Amendment to the U.S. Constitution are absolute, not subject to qualification or abridgement in any way. Relevant amendment: First Significance: Very few First Amendment absolutists sat on the Supreme Court, and the Court never made a First Amendment decision based on the absolutist approach. Among the Supreme Court justices who could be called First Amendment absolutists is Justice Hugo L. Black. He argued that when the First Amendment said “Congress shall make no law” it meant that Congress should make absolutely no laws abridging First Amendment rights. Almost all other justices have taken that with a grain of salt, opining that “no law” meant something other than absolutely no laws. Justice William O. Douglas joined Black in most of his absolutist decisions, and he wrote that the government should take an enabling position regarding First Amendment issues, especially freedom of the press, creating opportunities for citizens to publish opinions. However, the Court majority never took an absolutist approach to First Amendment issues.

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The First Amendment can be separated into three divisions: the religion clauses (establishment and freedom), the speech and press clauses, and the clauses guaranteeing peaceable assembly and the right to petition. Most of the Court’s First Amendment decisions relate to speech and press, and a substantial number of cases relate to religion. Only a handful are about assembly and petition rights. Speech and Press. The Court clearly stated that no absolute freedom of speech or the press exists. It found in Cohen v. California (1971) that there is no absolute freedom to speak wherever or whenever one chooses and in Dennis v. United States (1951) that the “societal value of speech must on occasion be subordinated to other values and considerations.” It should be noted that Dennis, a case involving the trial of people charged with preaching the violent overthrow of the government by the Communist Party, is not unanimously considered good law today. Neither is Schenck v. United States (1919), a case involving people convicted of distributing leaflets urging draftees not to bear arms; this violated the Espionage Act of 1917. Their conviction was unanimously upheld by the Court. In his opinion, Justice Oliver Wendell Holmes wrote that freedom of speech does not give one the right to shout a false “fire” warning in a crowded theater. Holmes’s words served as the foundation of the clear and present danger test. The Court used the clear and present danger test as well as a balancing test (which examines the gravity of the danger to see if it justifies suppressing freedom of speech) in numerous decisions to determine when First Amendment freedom of speech and press rights could be abridged. When Justice Joseph Story, a friend and colleague of Chief In his commentaries on the law, Justice Joseph Justice John Marshall, wrote his Story argued that the government has a right commentaries on the law, he arto protect its survival. (Courtesy of Art & gued that the government has a Visual Materials, Special Collections Department, Harvard Law School) right to protect its survival, and

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the Court upheld that line of reasoning in American Communications Association v. Douds (1950). The free speech and free press clauses must be balanced against compelling public interests, the Court ruled, and it appears that every effort to challenge that ruling has been denied certiorari. The Court ruled that regulation of speech and the press must not be content-based, must bear a reasonable relationship to a significant government interest, and must allow for other channels of communication. Religion. The Court comes closest to the absolutist position when it rules on religion cases. The religion clauses are absolute “as far as they go,” the Court ruled, but they do not require complete separation of church and state. What they do require is that the government avoid regulating religious beliefs, establishing a state religion, and showing any preferences among religions or between religion and irreligion. When religious belief is translated into action, the state can intervene to regulate or prevent the action. Any legislation, the Court ruled in Larkin v. Grendel’s Den (1982), must meet three rules: First, it must meet a secular legislative purpose; second, it must neither advance nor inhibit religion; and third, it must not entangle the government with religion. Assembly and Association. Neither the right to assemble nor that to associate was judged to be absolute. For example, in Cox v. New Hampshire (1941), the Court upheld a license requirement for public parades and processions. In various cases, it endeavored to establish where and how people could assemble. The Court also examined association issues, trying to determine whether membership in certain clubs or organizations could be denied to members of various groups and whether those institutions were public or private. Further Reading Alderman, Ellen, and Caroline Kennedy. In Our Defense: The Bill of Rights in Action. New York: Morrow, 1991. Black, Hugo LaFayette. One Man’s Stand for Freedom: Mr. Justice Black and the Bill of Rights. New York: Alfred A. Knopf, 1971. Dennis, Everett, Donald M. Gillmore, and David L. Grey, eds. Justice Hugo Black and the First Amendment: “No Law” Means “No Law.” Ames: Iowa State University Press, 1978. Duran, James C. Justice William O. Douglas. Boston: Twayne, 1981.

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Fellman, David. The Constitutional Rights of Association. Chicago: University of Chicago Press, 1963. Hocking, William Ernest. Freedom of the Press: A Framework of Principle. New York: Da Capo Press, 1972. Levy, Beth, and Denise M. Bonilla. The Power of the Press. Bronx, N.Y.: H. W. Wilson, 1999. Miller, William Lee. The First Liberty: Religion and the American Republic. New York: Alfred A. Knopf, 1986. St. John, Jeffrey. Forge of Union, Anvil of Liberty: A Correspondent’s Report on the First Federal Elections, the First Federal Congress, and the Bill of Rights. Ottawa, Ill.: Jameson Books, 1992. Smolla, Rodney A. Free Speech in an Open Society. New York: Alfred A. Knopf, 1992. Dwight Jensen

FIRST AMENDMENT BALANCING Description: Weighing of different interests involved in cases raising First Amendment claims, typically the free speech rights of an individual versus the potential harm posed to society as a whole. Relevant amendment: First Significance: Although all Supreme Court First Amendment rulings involve the balancing of different claims and interests, the Court explicitly or implicitly invoked the balancing test most consistently during the 19471957 period. It almost invariably placed a higher value on social than individual claims in free speech cases, thus often upholding convictions. The Supreme Court’s First Amendment jurisprudence gradually evolved after World War I. Earlier, the Court had invoked various tests for resolving First Amendment conflicts, including the well-known clear and present danger test first invoked in Schenck v. United States (1919). During the 1947-1957 period, the Court, usually implicitly but sometimes explicitly, appears to have been guided by a balancing test, through which the Court sought to weigh competing interests and claims against each other. Ten Years of Balancing. All legal cases, by definition, involve competing considerations, and therefore any jurisprudence involves balancing, as

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indeed does virtually all private decision making. However, the concept of First Amendment balancing is particularly apparent in the Court’s First Amendment jurisprudence during the 1947-1957 period because of the manner and outcome of its rulings. When the Court seems to have invoked balancing during this period, it invariably gave more weight to perceived societal interests over First Amendment claims of individuals and organizations. Therefore, in the view of its critics, the Court claimed to be impartially balancing competing interests while in fact placing a thumb on the social side of the scales. After 1957, the Court largely abandoned the balancing test in First Amendment cases, instead generally relying on other tests such as the preferred freedoms doctrine, which tended to yield results favoring individual rights. American Communications Association v. Douds (1950) is one of the relatively few cases in which the Court explicitly elaborated balancing considerations. At issue was a provision of the 1947 Taft-Hartley (Labor-

Chief Justice Fred M. Vinson believed that the Supreme Court had a duty to determine which interests needed greater protection in cases in which constitutional principles conflict. (Collection of the Supreme Court of the United States)

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Management Relations) Act that required all union officials to sign noncommunist affidavits in order to maintain their offices and for their unions to qualify for various benefits under existing federal labor laws. Chief Justice Fred M. Vinson’s majority opinion upholding the validity of the contested provision declared that the clear and present danger standard of Schenck was not intended to create an absolutist test. He stated that when a statute’s effect on a person’s ability to exercise First Amendment rights was relatively small but the public interest to be protected was significant, a rigid test that necessitated the demonstration of imminent danger to the nation’s security was an “absurdity.” Instead, Vinson said, the Court’s duty was to determine which interest needed greater protection under the particular circumstances of the case. He weighed the likely effects of the statute on the free exercise of First Amendment rights against the “congressional determination that political strikes are evils of conduct which cause substantial harm to interstate commerce” and that communists “pose continuing threats to the public interest when in positions of union leadership.” In Dennis v. United States (1951), the Court upheld the conviction of top U.S. Communist Party leaders for conspiracy to advocate and organize the overthrow of the government. In his concurring opinion, Justice Felix Frankfurter, a leading advocate of balancing, stated, “The demands of free speech in a democratic society as well as the interest in national security are better served by candid and informed weighing of the competing interests, within the confines of the judicial process, than by announcing dogmas too inflexible for the non-Euclidean problem to be solved.” Criticisms. Frankfurter’s reference to inflexible “dogmas” was a response to critics of balancing, who claimed that it was consistently invoked in a manner that overlooked or watered down compelling free speech claims. Among the critics of balancing was Justice Hugo L. Black, who was associated with the absolutist view that held that absolutely no law should be passed that abridged First Amendment rights. In Barenblatt v. United States (1959), Black declared that the Court’s application of balancing amounted to amending the First Amendment to read, “Congress shall pass no law abridging freedom of speech, press, assembly, and petition unless Congress and the Supreme Court reach the joint conclusion that on balance the interest of the government in stifling these freedoms is greater than the interest of the people in having them exercised.” Similarly, in Smith v. California (1959), Black argued that because the

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First Amendment said Congress could pass “no law abridging” free speech rights, this meant that the Constitution placed these rights above any competing claims, and therefore no federal agency, including the Court, had the power or authority to subordinate speech and press to what they think are more important interests. Further Reading Abernathy, M. Glenn, and Barbara Perry. Civil Liberties Under the Constitution. Columbia: University of South Carolina Press, 1993. Barker, Lucius, and Twiley W. Barker, Jr. Civil Liberties and the Constitution. Englewood Cliffs, N.J.: Prentice-Hall, 1994. Emerson, Thomas. The System of Freedom of Expression. New York: Vintage Books, 1970. Robert Justin Goldstein

FIRST AMENDMENT SPEECH TESTS Description: Rules set forth in several twentieth century Supreme Court decisions by which the Court judged later claims of protected speech. Relevant amendment: First Significance: To First Amendment absolutists and civil libertarians, the speech tests employed by the Supreme Court severely weakened individuals’ constitutional rights to free speech. To others, the tests balanced the rights of government and society with those of individuals. Beginning in the early twentieth century, the Supreme Court adopted tests by which to decide claims of First Amendment protection. The first and most frequently applied test is that of clear and present danger and its subsequent modifications. Developed by Justices Oliver Wendell Holmes and Louis D. Brandeis, this test weighs an individual’s First Amendment rights against the government’s right to protect itself and its citizens. The clear and present danger test was set forth by Justice Holmes in Schenck v. United States (1919). Charles Schenck and his codefendants were convicted under the 1917 Espionage Act for disrupting military recruiting by distributing antiwar leaflets. Schenck appealed, citing First Amendment protection, but the Court unanimously upheld the convic-

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tion. In the opinion for the Court, Holmes wrote, “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.” The clear and present danger at the time was World War I, and the substantive evil was the hindering of national defense. Changing Applications. However, just as free speech is not absolute, according to the Court, speech tests also are not absolute. Chief Justice Fred M. Vinson, in the majority opinion in Dennis v. United States (1951), wrote, “Neither Justice Holmes nor Justice Brandeis ever envisioned that a shorthand phrase should be crystallized into a rigid rule to be applied inflexibly without regard to the circumstances of each case. . . . Nothing is more certain in modern society than the principle that there are no absolutes, that a name, a phrase, a standard has meaning only when associated with the considerations which gave birth to the nomenclature.” Therefore, the Court continuously modified and reinterpreted the clear and present danger test. For example, in Gitlow v. New York (1925), the test was further qualified. Despite a lack of clear and present danger, the Court upheld Benjamin Gitlow’s conviction for publishing the Left-wing Manifesto, which urged a violent government overthrow. The majority opinion of Justice Edward T. Sanford put forth that speech is not protected “if its natural tendency and probable effect was to bring about the substantive evil which the legislative body might prevent.” The Court applied this new bad tendency test again in Whitney v. California (1927) to uphold the conviction of Charlotte Anita Whitney, a communist. She was guilty under California’s criminal syndicalism law because the organization in which she participated promoted violent political action. In upholding the conviction, the Court cited a state’s right to protect itself from organizations advocating criminal acts. In addition to changing the definitions for tests, the Court also inconsistently applied them. For example, in Terminiello v. Chicago (1949), Father Arthur Terminiello’s conviction was narrowly overturned, despite a riot by protestors during his inflammatory speech. In writing the majority opinion, Justice William O. Douglas modified the clear and present danger test by adding that it must be “of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.” This particular

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Court was of the opinion that speech is necessarily provocative and that the ensuing disturbance was mild enough to be quelled by police. In Dennis, the Court again modified the definition of clear and present danger. In upholding the convictions of communists under the Smith Act (1940), Chief Justice Fred M. Vinson restated Chief Judge Learned Hand’s lower court ruling: “In each case [courts] must ask whether the gravity of the ‘evil,’ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.” The Court thus created the grave and probable danger test, which removed the burden of the state to prove the existence of an immediate danger to itself. Consequently, civil liberties were severely weakened. Dissenting Views. First Amendment speech tests are not without criticism, as Justice Hugo L. Black’s dissenting opinion in Dennis illustrates: “I cannot agree that the First Amendment permits us to sustain laws suppressing freedom of speech and press on the basis of Congress’ or our own notions of mere ‘reasonableness.’ Such a doctrine waters down the First Amendment so that it amounts to little more than an admonition to Congress.” Black’s dissent is important because the Court seemed to favor the side of government in the First Amendment cases brought to it. By Brandenburg v. Ohio (1969), however, the Court redefined clear and present danger, and in so doing, began to favor civil liberties. Ku Klux Klan leader Clarence Brandenburg was convicted under Ohio’s criminal syndicalism law, which was modeled on the California statute under which Whitney was convicted decades earlier. The Court overturned the conviction and established the incitement test. In its unsigned majority opinion, the Court distinguished between speech and action. It stated that speech advocating force or lawlessness is protected; however, speech “directed to inciting or producing imminent lawless action” or “likely to incite or produce such action” is unprotected. The Court referred to this ruling in subsequent cases. Further Reading Killian, Johnny H., ed. The Constitution of the United States of America: Analysis and Interpretation. Washington, D.C.: Government Printing Office, 1987. Rabban, David M. Free Speech in Its Forgotten Years. New York: Cambridge University Press, 1997. Beau David Case

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FLAG DESECRATION Description: Act of physically “harming” the U.S. flag, usually through such means as burning or tearing; at times the term was also applied to verbal criticism of the flag or what it represents. Relevant amendment: First Significance: The Supreme Court upheld the right, under the First Amendment, of people to both verbally and physically assault the flag and, in so doing, helped define and extend the meaning of constitutionally protected symbolic speech. The U.S. flag, a symbol of the nation, is displayed widely in front of government buildings, private homes, and commercial enterprises and used extensively as a design springboard for clothing, advertising, and a wide variety of other products. However, it attracted little interest and received little public display for more than eighty years after its original adoption as a symbol of the nation by the Continental Congress on June 14, 1777. Only the outbreak of the Civil War (1861-1865) transformed the flag into an object of public adoration—although only, of course, in the North. The newly found Northern love for the flag continued after the Civil War, but the flag’s growing popularity was not accompanied by any sense that it should be regarded as a sacred object or relic. During the nation’s rapid postwar industrialization, as the modern advertising industry developed, the flag became increasingly popular as a decorative accompaniment in the commercialization of a wide range of products. Gradually, after 1890, Union veterans and members of patriotic-hereditary groups such as the Sons of the American Revolution began to protest alleged commercial debasement of the flag, which they declared would ultimately cause the significance of both the flag and patriotism to degrade among the general public. After about 1900 the supposed threat to the flag shifted from commercialization to that allegedly posed by its use as a means of expressing political protest by political radicals, trade union members, and immigrants (who were often indiscriminately lumped together). Between 1897 and 1932 veterans and hereditary-patriotic groups lobbied for stringent laws to “protect” the flag from all forms of alleged “desecration” (the harming of sacred religious objects) and succeeded in obtaining passage of flag desecration laws in all forty-eight states, with thirty-

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one states acting between 1897 and 1905 alone. The laws generally outlawed attaching anything to or placing any marks on the flag, using the flag in any manner for advertising purposes, and physically or verbally “harming” flags in any way, including, typically, publicly mutilating, trampling, defacing, defiling, defying, or casting contempt on the flag. The term “flag” was generally defined to mean any object of any form, size, or material that resembled the U.S. flag. Early Court Rulings. The earliest state flag desecration laws were quickly and, at first, successfully challenged in local and state courts as illegally restricting property rights by adversely affecting commercial interests. However, in Halter v. Nebraska (1907), the Supreme Court upheld Nebraska’s law in sweeping terms that made clear the futility of any further legal challenges for the foreseeable future. In a case involving sales of Stars and Stripes beer, which had pictures of flags on the bottle labels, the Court declared that the state was entitled to restrict property rights for the valid and worthy purpose of fostering nationalism. In a ruling that did not address free speech rights, the Court declared that “love both of the common country and of the State will diminish in proportion as respect for the flag is weakened,” that advertising usage of the flag tended to “degrade and cheapen it in the estimation of the people,” and that the state was entitled to “exert its power to strengthen the bonds of the Union and therefore, to that end, may encourage patriotism and love of country among its people.” The Court did not consider another flag desecration case until 1969, and during the interim period, the constitutionality of flag desecration laws was essentially considered beyond review by the lower courts. The Court revisited the issue during the Vietnam War, when flags were widely burned or used in other unorthodox ways to express political dissent (resulting in hundreds of flag desecration prosecutions). In Street v. New York (1969), the Court relied heavily on its rulings in Stromberg v. California (1931) and West Virginia State Board of Education v. Barnette (1943) to strike down flag desecration provisions that outlawed verbal disrespect for the flag as violating the First Amendment. The Court, by a 5-4 vote, overturned Street’s flag desecration conviction on the grounds that because he had been charged under a provision of New York’s law outlawing casting contempt on the flag by words or acts and evidence concerning his statements had been introduced at trial, he might have been convicted for his words alone. Any such conviction, in the ab-

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sence of any evident threat to the peace or incitement to violence, was held to violate the First Amendment because “it is firmly settled that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers,” even opinions about the flag “which are defiant or contemptuous.” The Court completely avoided addressing the constitutionality of laws that banned physical flag desecration on the grounds that there was no need to decide the case “on a broader basis than the record before us imperatively requires.” Aside from Street, the Court in 1974 overturned convictions in two other Vietnam-era flag desecration cases, Goguen v. Smith and Spence v. Washington, which were both decided on narrow grounds that again avoided directly addressing the validity of state interests in protecting the physical integrity of the flag in light of First Amendment questions. A Texas Flag Burning. In Texas v. Johnson (1989), which arose from a 1984 Dallas flag-burning incident, the Court directly faced the question of physical desecration of the flag, ruling by a 5-4 vote that Texas’s venerated objects law had been unconstitutionally applied to Johnson. Texas advanced two interests as overriding Johnson’s First Amendment rights, but the Court dismissed them. First, it found that the state’s interest in maintaining order was not implicated because no disturbance of the peace occurred or threatened to occur because of Johnson’s act. Second, regarding a need to preserve the flag as a national symbol, the Court held that because Johnson’s guilt depended on the communicative nature of his conduct, the Texas statute violated the main principle behind the First Amendment, that the government cannot ban the expression of an idea because society finds that idea offensive or disagreeable. Citing its holding in Street that a state cannot criminally punish a person for speech critical of the flag, the Court declared flatly that Texas’s attempt to distinguish between written or spoken words and nonverbal conduct “is of no moment where the nonverbal conduct is expressive, as is here, and where the regulation of that conduct is related to expression, as it is here.” Furthermore, the Court declared that the government cannot ban expression of ideas that it does not like because the expression takes a particular form; therefore, the state cannot criminally punish a person for burning a flag in political protest on the grounds that other means of expressing the same idea were available. The Court concluded that the

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principles of freedom reflected in the flag would be reaffirmed by its decision: “We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents.” Johnson touched off an intense and massive uproar across the United States. Virtually every member of Congress endorsed resolutions condemning the ruling. To circumvent the ruling, most Democrats maintained that an ordinary law would suffice, but President George Bush and most Republicans maintained that a constitutional amendment would be required. The Democratic congressional leadership noted that Johnson struck down a Texas statute that forbade flag desecration likely to cause “serious offense” to observers, rather than, as the Court noted at one point, “protecting the physical integrity of the flag in all circumstances” and argued that the court might uphold such a “content neutral” law. The 1989 Flag Protection Act. Whether due to a perceived cooling of public sentiment, to increasing signs of growing opposition to a constitutional amendment, or to increased acceptance of the argument that trying a statute first was preferable to a constitutional change, by October, 1989, the drive for a constitutional amendment, seemingly unstoppable in late June after President Bush endorsed it, was sputtering. On October 19, the constitutional amendment failed to reach the two-thirds majority it required in the Senate. However, both houses of Congress passed the proposed statutory alternative, the Flag Protection Act of 1989. The Flag Protection Act provided penalties of up to one year in jail and a one thousand dollar fine for anyone who “knowingly mutilates, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States” with “flag” defined as “any flag of the United States, or any part thereof, made of any substance, of any size, in a form that is commonly displayed.” Although the stated purpose of the act was to end flag burnings, its immediate impact was to spur perhaps the largest single wave of such incidents in U.S. history, as flags were burned in about a dozen cities shortly after the law took effect in late October. Acting under an extraordinary expedited review procedure mandated by the act, the Court struck down the Flag Protection Act by a 5-4 vote in United States v. Eichman on June 11, 1990. The Eichman ruling essentially underlined Johnson, finding that the government’s interest in protecting the flag’s position as a symbol of the United States and certain ideals did

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not justify the infringement on First Amendment rights. Although conceding that the new law, unlike the Texas statute in Johnson, did not explicitly place content-based limits on the scope of prohibited conduct, the Court held that the Flag Protection Act still suffered from the same fundamental flaw as the Texas law, namely that it could not be justified without reference to the content of the regulated speech. The Court added, “Punishing desecration of the flag dilutes the very freedom that makes this emblem so revered, and worthy of revering.” The Eichman decision sparked an immediate renewal of calls by President Bush and others for a constitutional amendment. However, the proposed amendment was defeated in both houses of Congress in 1990. After Republicans gained control of both houses of Congress in 1994, the amendment was passed by the required two-thirds majority in the House in 1995, 1997, and 1999. However, in the Senate, it failed to gain a twothirds majority by three votes in 1995 and by four votes in 2001. Further Reading Curtis, Michael, ed. The Flag Burning Cases. Vol. 2 in The Constitution and the Flag. New York: Garland, 1993. Goldstein, Robert Justin. Burning the Flag: The Great 1989-1990 American Flag Desecration Controversy. Kent, Ohio: Kent State University Press, 1996. _____, ed. Desecrating the American Flag: Key Documents of the Controversy from the Civil War to 1995. Syracuse, N.Y.: Syracuse University Press, 1996. _____. Saving “Old Glory”: The History of the American Flag Desecration Controversy. Boulder, Colo.: Westview Press, 1995. Miller, J. Anthony. “Texas v. Johnson”: The Flag Burning Case. Springfield, N.J.: Enslow, 1997. Robert Justin Goldstein

GAG ORDER Description: A trial judge’s order requiring attorneys, police, and parties involved in a criminal proceeding not speak to the news media concerning the proceeding Relevant amendment: First Significance: A gag order, or rule, is designed to protect a defendant’s

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right to a fair trial while at the same time providing for a press free from more extreme censorship Since the U.S. Supreme Court overturned Samuel H. Sheppard’s murder conviction in 1965 because a trial judge had permitted a media circus to deny him a fair trial, judges have sequestered juries during trials and issued gag orders, or rules, to the parties, attorneys, police, and potential witnesses barring them from talking to the press outside court before the trials begin. Such gag orders, while a form of censorship, minimize excessive pretrial publicity that might damage a court’s ability to find a jury untainted by prejudicial remarks, while avoiding a direct prior restraint or censorship of the press. In Nebraska Press Association v. Stuart (1976) the trial judge, believing that pretrial hearings, as trials, were required to be open to the press and public under the Sixth Amendment, allowed the press in a pretrial hearing without realizing how damaging information in a dramatic murder case would be. The judge then imposed a gag order banning members of the press from printing what they had learned. However, the Supreme Court ruled that this was an impermissible prior restraint on the press. The Court balanced press freedom against the defendant’s right to a fair trial by allowing judges to issue gag orders to keep material secret, but it did not permit them to impose gag orders on the press even if they acquire prejudicial information on the defendant. Similarly, the Court has allowed military secrecy, but has forbidden prior restraints after secrets have reached the press. Richard L. Wilson

GAY AND LESBIAN RIGHTS Description: Claims of constitutional protections against legal disabilities imposed on the basis of homosexual orientation. Relevant amendments: Fifth, Ninth, Fourteenth Significance: Despite efforts to secure Supreme Court rulings that would protect gay or lesbian individuals’ sexual privacy or that would protect them from discriminatory treatment by the law, the Supreme Court has tended to avoid the issue of gay rights through denials of certiorari, ruling on the issue only twice.

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Gay and lesbian rights / 209

The U.S. Constitution does not expressly assign rights to persons based on their sexual orientation. However, the due process clauses of the Fifth and Fourteenth Amendments promise fair treatment by the legal system. The equal protection clause of the Fourteenth Amendment guarantees equality before the states, and the Supreme Court has construed the due process clause of the Fifth Amendment as imposing a similar requirement on the federal government. These clauses would seem to offer homosexual individuals considerable protection from the kinds of legal discrimination and disability that has long been their lot. In Griswold v. Connecticut (1965) and Eisenstadt v. Baird (1972), the Court found a right of privacy that encompassed the decision to use contraceptives. These cases, combined with rulings creating reproductive rights, suggested to some a broad due process right of privacy over intimate choices, possibly including the choice of sexual partner. The Court was invited to rule on this issue on several occasions, an invitation that was declined through denials of certiorari until 1986. In Bowers v. Hardwick (1986), a sharply divided Court held that this right of privacy did not encompass consensual homosexual sodomy. The right of privacy pertained to matters of reproduction, marriage, and family, and the Court viewed homosexual activity as unrelated to any of these. Dissenters construed the issue presented in prior cases and in Bowers differently, as invoking a broad right to be left alone. Twenty-four states then had sodomy statutes, enforced nearly exclusively against homosexuals. Many have since repealed these laws. Discrimination against gay, lesbian, or bisexual persons in employment housing, public accommodations, and elsewhere has fueled demands for legislative relief, and some jurisdictions, mostly on the municipal level, have responded. A backlash against such ordinances produced Colorado’s Amendment 2, an amendment to the state constitution adopted by popular referendum, prohibiting legislation protecting homosexuals from discrimination. In Romer v. Evans (1996), the Court ruled that Amendment 2 violated the equal protection clause of the Fourteenth Amendment. The equal protection clause did not obligate the states to enact legislative protections. However, Colorado’s constitutional preclusion of legislative protection was found “inexplicable by anything but animus” against homosexuals and did not further any proper state policy but only inequality for its own sake. “A state cannot so deem a class of persons strangers to its laws,” the Court stated. Some gay and lesbian activists have argued that the Constitution grants

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them a right to civil marriage. They point to Loving v. Virginia (1967), in which the Court held the equal protection clause barred the states from outlawing interracial marriage. By the end of the twentieth century, the issue had been litigated only before the supreme courts of Vermont and Hawaii, where the state supreme court upheld a law banning same-sex marriages. However, many Supreme Court watchers believed the issue likely to come before the Court in the early 2000’s. Further Reading Gertsmann, Evan. The Constitutional Underclass: Gays, Lesbians, and the Failure of Class-Based Equal Protection. Chicago: University of Chicago Press, 1999. Miller, Diane Helen. Freedom to Differ: The Shaping of the Gay and Lesbian Struggle for Civil Rights. New York: New York University Press, 1998. Nava, Michael, and Robert Dawidoff. Created Equal: Why Gay Rights Matter in America. New York: St. Martin’s Press, 1995. John C. Hughes

GRAND JURY Description: Panel of ordinary citizens having the authority to view evidence of criminal activity, presented by a prosecutor, solely to determine if sufficient evidence exists to warrant submitting the accused to trial. Relevant amendment: Fifth Significance: Although long celebrated as a protection against the abuse of prosecutorial power, the Supreme Court imposed few procedural limits on the grand jury’s own sweeping investigatory powers. Thus, the contemporary grand jury may have actually become an instrument to expand prosecutorial power. The grand jury is descended from English common law dating to the twelfth century. It originally performed an investigatory function, as citizens were assembled to report local crimes to an itinerant judge so that appropriate trials could be held. By the seventeenth century, the grand jury also demonstrated that it could, by its refusal to indict, protect the citizen against arbitrary, vindictive, or politically motivated prosecutions. In

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the North American colonies, the grand jury became a bastion of home rule, resisting prosecutions under oppressive British colonial policies. So esteemed was the grand jury in America that the Fifth Amendment of the U.S. Constitution provided that “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.” This provision continues to govern all federal felony prosecutions, crimes that could result in a year or more of incarceration. However, the grand jury is today in decline, used in fewer than half the states. It was abolished in Great Britain in 1933, after having fallen into disuse there for many years. The federal grand jury has followed the common law model of twentythree citizens, with a quorum of sixteen. The grand jury is chosen from a cross section of the citizenry, without regard to race, national origin, religion, sex, or economic circumstances. A vote of twelve is sufficient to approve an indictment, or a formal accusation of criminal activity. Therefore, the grand jury is distinct from the petit, or trial, jury. The latter hears evidence at a public trial, including evidence presented by the defense, and may convict by unanimous vote only if convinced of guilt beyond a reasonable doubt. The grand jury convenes in secret to hear evidence presented by the prosecutor, solely to determine if there is sufficient cause to proceed to trial. The very permissive standard of evidence employed for this determination is merely that a crime has been committed and that there is “probable cause” to believe the subject of the investigation has committed it. A refusal to indict will block the prosecution. However, a disappointed prosecutor may present evidence to a subsequent grand jury, in hopes for an indictment, without the impediment of the Fifth Amendment’s double jeopardy provision. Given its historical veneration and inclusion in the Bill of Rights, the grand jury could be expected to be a more universal presence in U.S. criminal justice. Most prosecutions are conducted under state authority, however, and in Hurtado v. California (1884), the Supreme Court held that the grand jury indictment was not an essential part of due process protected against abuse by the states by the Fourteenth Amendment. This ruling remains in effect today, even as most other provisions of the Bill of Rights have since been applied to the states through the incorporation doctrine of the Fourteenth Amendment. Most states authorize an alternative procedure called an “information,” whereby a prosecutor presents evidence to a judge, who performs an equivalent screening function. Many of those states that use grand juries have altered their size, quorum,

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or the majority necessary to indict, all in the interest of streamlining an expensive and, in the eyes of many, a dated procedure. Procedural Rights. Despite its celebrated status as a protection against prosecutorial overreaching, the Court has extended few procedural safeguards to the federal grand jury. It has been given wide latitude to conduct its secret investigations, compelling the appearance of witnesses and the production of documents. Prosecutors dominate the proceedings of the grand jury and are not obligated to present exculpatory evidence. The subject of a grand jury investigation has no right to appear or to confront and cross-examine witnesses. Indeed, unless already under arrest, the subject may not know that he or she is being investigated. Few evidentiary rules are observed, therefore, for example, hearsay evidence may be introduced. In United States v. Calandra (1974), the Court declined to apply the Fourth Amendment exclusionary rule to bar evidence from the grand jury that would be inadmissible at trial. Indeed, by granting access to its subpoena power, the grand jury may offer prosecutors an avenue toward evidence the Fourth Amendment would otherwise place beyond reach. Because the proceedings are secret, witnesses appear without an attorney present. They may, only on their own motion, step outside the grand jury room to consult with their attorney. Indigent witnesses have no right to court-appointed counsel. Witnesses may invoke their Fifth Amendment immunity against self-incrimination to resist having to testify, but the prosecutor is under no obligation to warn them of this right. The right against compulsory self-incrimination can also be circumvented by a grant of immunity, even against the wishes of the witness. This immunity can be “transactional,” which bars all future prosecution for matters on which the witness has testified, or the more limited “use” immunity, which permits future prosecution for matters that were the subject of grand jury testimony if based on independent evidence. The practical significance of the grand jury in contemporary criminal law is controversial. Its original investigatory function has been taken over by professional police bureaucracies. Generally compliant and dominated by prosecutors, the ability of the grand jury to serve as a bulwark against arbitrary prosecution is realized only sporadically. Critics point to occasional abuse of the grand jury to support their contention that it is today more of a threat to liberty than a foundation for liberty’s protection.

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Further Reading Clark, Leroy D. The Grand Jury: The Use and Abuse of Political Power. New York: Quadrangle, 1975. Frankel, Marvin E., and Gary P. Naftalis. The Grand Jury: An Institution on Trial. New York: Hill & Wang, 1977. Katzmann, Gary S. Inside the Criminal Process. New York: W.W. Norton, 1991. John C. Hughes

HATCH ACT Description: An act that became law in 1939 that restricted the political activities of federal employees Relevant amendment: First Significance: The Hatch Act prohibited employees of the federal government from using their official authority to affect an election or to engage in political management or campaigns The Hatch Act was enacted in response to a special Senate investigation showing that government officials had coerced federal workers to contribute to the reelection campaign of a U.S. senator in 1938. A second, and possibly more important reason for its passage was a fear that President Franklin D. Roosevelt would use the growing number of federal workers as a formidable political machine. In March of 1939, Senator Carl Hatch of New Mexico introduced legislation incorporating the recommendations of the special Senate committee prohibiting the involvement of federal employees in any political organization. They retained the right to vote and could privately express their political opinions. Political appointees and policy-making employees were not included in the act. By restricting the political activity of federal workers, the act addressed three objectives: It precluded the use of the federal workforce for political purposes; it prevented the bureaucracy from becoming a powerful political actor; and it reduced the influence of partisan politics in the hiring, promotion, and firing of federal employees. The Hatch Act was amended in 1993 to allow federal employees, acting as private citizens, to engage in any legal political activity while not on the job.

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HATE CRIMES Description: Criminal acts motivated by hatred of and directed against members of a particular group Relevant amendment: First Significance: Hate crimes injure the victim and society in ways that other crimes do not; it has been argued that, because of their nature, they generate more injury, distress, and suffering than do other crimes In 1984, Alan Berg, a Jewish talk show host on a Denver radio station, was fatally shot on his way home by several members of a neo-Nazi hate group. In 1986, three white teenagers attacked three black men in Howard Beach, New York, for no other reason than the fact that they were black. Both these actions were hate crimes—crimes motivated by the hatred of a certain group, such as a certain race, ethnic group, religion, gender, or sexual orientation. Since the mid-1980’s, hate crimes have been on the rise. Hate crimes are typically excessively brutal, and quite often they are carried out in a random fashion against strangers, as with the incidents involving the Howard Beach black men. Authors Jack Levin and Jack McDevitt have given several explanations as to why these crimes occur: the perpetrator’s negative and stereotypic view of other people, the possibility that bigotry is becoming more widely tolerated, the resentment that one group feels toward another because it has been left out of the mainstream of society, a perpetrator’s desire for the thrill of the action, a perpetrator’s reaction to a perceived or imagined injury such as the loss of a job promotion or a benefit, and finally, a perpetrator’s wish to rid the world of evil. Federal Laws Against Hate Crimes. There are a number of different types of laws which victims of hate crimes can use against perpetrators. In the last years of the twentieth century, most states enacted laws to deal specifically with these types of crimes. Several statutes also address these crimes on a federal level. There are federal laws prohibiting conspiracies against the rights of citizens, prohibiting a deprivation of rights under color of law, and prohibiting damage to religious property and obstruction of persons in the free exercise of their religious beliefs. In addition, there are federal statutes that prohibit forcible interference with civil rights

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and willful interference with civil rights under the fair housing laws. These federal statutes have rarely been applied to hate crimes for several reasons. First, if a president does not emphasize civil rights, the attorney general in that administration will not be likely to prosecute these crimes. Second, since most of these statutes require that the victim be engaged in an activity involving a federally protected right, such as buying a house or eating in a restaurant, they do not apply to many victims. Third, the remedies under the federal statutes are limited. Fourth, only certain groups, such as racial and religious groups, are protected under these statutes. Sexual orientation is not. Thus, the most active prosecution of hate crimes has been at the state level. State Laws Prohibiting Expressive Conduct. On June 21, 1990, two young white men burned a cross on the property of a black family in St. Paul, Minnesota. One of the men, designated by his initials, R.A.V., because he was only seventeen at the time, was charged in accordance with a new city “bias-motivated” disorderly conduct ordinance which read, “Whoever places on public or private property, a symbol, appellation, characterization, or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion, or gender commits disorderly conduct and shall be guilty of a misdemeanor.” R.A.V. could have been charged with simple trespass, disorderly conduct, breach of the peace, or even a more severe crime such as terroristic threats. Instead, in what was to become a test case of the statute and others similar to it, the prosecutor decided to invoke this law, which punished the expression of a viewpoint. R.A.V.’s attorney, Edward J. Cleary, decided to challenge the constitutionality of the law under the First Amendment to the Constitution. A Minnesota district court agreed that the ordinance was unconstitutional. The prosecutor decided to appeal the decision to the Minnesota Supreme Court. This court overturned the lower court ruling. R.A.V. appealed to the Supreme Court of the United States for a review of the case. On June 22, 1992, the Court issued a unanimous opinion in R.A.V. v. City of St. Paul declaring that the ordinance was unconstitutional. Five of the justices held that the ordinance was unconstitutional because it prohibited the expression of subject matter protected by the First Amendment. Four of the justices said that the ordinance was overbroad in that it in-

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cluded in its proscriptions expression which was protected by the First Amendment. The entire Court thought that the city had other means by which to prosecute R.A.V. Thus, the Court concluded that, offensive as the action in which R.A.V. had engaged was, the action was protected under the Constitution to the extent that it was expressive conduct. State Hate Laws Prohibiting Conduct. In 1991, a nineteen-year-old black man, Todd Mitchell, and his friends came out of a theater showing the film Mississippi Burning so enraged that, upon seeing a fourteen-year-old white youth (Gregory Riddick) on the street, they assaulted him. Coming out of the film, Mitchell said to others in his group, “Do you all feel hyped up to move on some white people?” Then, when Mitchell saw Riddick walking by, he added, “There goes a white boy—go get him.” The group kicked and beat the boy for five minutes. Riddick remained in a coma for four days before he returned to consciousness with probably permanent brain damage. Mitchell was convicted of aggravated battery, normally punishable by a maximum sentence of two years. Because the jury found that the crime was motivated by racial animus, however, the sentence was increased to seven years in accordance with a state statute which read, “If a person commits the crime of aggravated battery and intentionally selects the victim ‘in whole or in part because of the actor’s belief or perception regarding the race, religion, color, disability, sexual orientation or ancestry of that person,’ the maximum sentence may be increased by not more than five years.” Within hours after the Supreme Court announced its opinion in R.A.V., the Wisconsin Supreme Court struck down this law as unconstitutional. The state appealed the decision to the Supreme Court of the United States, and on June 11, 1993, in a unanimous opinion less than half the length of R.A.V., the Supreme Court reversed the decision and held that “enhancement” laws such as this which punish hate-motivated conduct are constitutional. The Court, in Wisconsin v. Mitchell, distinguished this case from R.A.V. by stating that R.A.V. dealt with expression and this case with conduct. The Court went on to state that with criminal acts, the more purposeful the conduct, the more severe is the punishment. Thus, when a defendant’s beliefs add to a crime and motivate the defendant into action, the motive behind the conduct is relevant to the sentencing and punishment. Second, the Court stated that these enhancement laws are similar

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in aim to civil antidiscrimination laws and that they are justified because the conduct involved inflicts greater individual and societal harm than do other crimes. Some commentators, such as Edward J. Cleary, who argued R.A.V. before the Supreme Court, view Mitchell with alarm and sense that these enhancement statutes come dangerously close to punishing a person’s thoughts and thereby infringing upon First Amendment rights. He would question why those who attack a person of another race should, because they hate that race and express it, be subject to stricter laws than those who attack in silence. By upholding the enhancement laws, Cleary suggests, the Supreme Court blurred the lines between speech and action. Others believe that, because of the Court’s emphasis on the analogy between these enhancement-type laws and antidiscrimination laws, these laws are constitutional. In sum, if a statute infringes upon expression, as in R.A.V., it will be held unconstitutional; if a statute prohibits conduct, it will be upheld. By 1991, thirty-five states had adopted some form of law to deter hate crimes. These laws, if they pass constitutional scrutiny, are not without practical problems. First, in many instances (as was the case in R.A.V.), prosecutors may wait to find the perfect case to fit the statute. The usefulness of the statute is thereby limited. Second, if there is a successful prosecution under the statute, there may be problems in carrying out a severe punishment. Most hate crime offenders are under twenty-one and do not have prior criminal records. Jails are overcrowded, and it seldom makes sense to jail the entire group involved in the crime. If only leaders are jailed, there is ample evidence that prison will make them worse. Jennifer Eastman

HICKLIN RULE Date: 1868 Issue: Obscenity and pornography Relevant amendment: First Significance: The decision of the Court of Queen’s Bench in Regina v. Hicklin established a test for obscenity known as the Hicklin rule that was long used not only in Great Britain, but in Canada and the United States

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In 1857 Great Britain’s Parliament passed Lord Campbell’s Act, which gave magistrates the power to seize and destroy obscene material. The Hicklin case of 1868 tested that act. Henry Scott, a fervent Protestant, published a pamphlet, The Confessional Unmasked, that was an exposé of alleged depraved practices within the Roman Catholic church. Government magistrates seized 252 copies of the pamphlet and ordered their destruction. When Scott appealed, a court recorder named Hicklin revoked the order. When the government appealed Hicklin’s decision, Chief Justice Alexander Cockburn of the Court of Queen’s Bench reinstated the order for the pamphlets’ destruction. In so doing he defined what was meant by obscenity: whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall.

This definition became known as the “Hicklin rule,” or “Hicklin test.” Though British in origin, it was used in U.S. courts until 1957. Because of the breadth of the Hicklin rule, obscenity prosecutions were easy to achieve in the United States for seventy-five years. Because it required only a “tendency” to deprave or corrupt, it swept broadly. Anyone could come under its scope. Furthermore, by merely hypothesizing into whose hands the material might fall, the rule extended its scope. The Hicklin rule expressly stated that it wanted to protect children. Thus, children who might tend to be depraved or corrupted, or into whose hands obscene materials might fall, were the main beneficiaries of the rule. Such reasoning was, however, entirely hypothetical. Adult tastes and interests were simply not considered. Therefore under the Hicklin rule, the adult public could be reduced to reading what was deemed fit only for children, or the most susceptible persons. Furthermore, even if only a part of the material were considered obscene, the whole work could be pronounced obscene and thereby censored. Examples of works banned under this rule during its seventy-five year tenure in the United States include such popular novels as Ernest Hemingway’s For Whom the Bell Tolls (1940) and James Jones’s From Here to Eternity. In the 1957 American cases Butler v. Michigan and Roth v. United States, the U.S. Supreme Court changed the standard to preclude only that material so obscene that it might have a negative influence on the average person.

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INDIAN BILL OF RIGHTS Description: Popular name for the Indian Civil Rights Act of 1968 (ICRA), which extended most of the guarantees in the U.S. Bill of Rights, as well as other constitutional rights, to the tribal governments and courts of Native American societies. Relevant amendments: First through Tenth Significance: During the decade following passage of the Indian Bill of Rights, members of Indian tribes complained that the federal courts were applying the legislation in ways inconsistent with Native American cultural traditions. However, in 1978 the U.S. Supreme Court authorized the tribal courts to exercise final authority over its interpretation and enforcement. In Talton v. Meyers (1896), the Supreme Court held that Native American tribes, in view of their quasi-sovereign status, were not bound by the Bill of Rights and other provisions of the U.S. Constitution, unless specified

President Harry S. Truman meeting with Indian leaders at the signing of the Indian Claims Commission Act in 1946. (Library of Congress)

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otherwise by federal legislation. The Court recognized that Congress had plenary power to decide which constitutional rights, if any, were applicable to the tribal governments. Over the years, many people accused the tribal governments and tribal courts of arbitrary and despotic actions. Responding to these complaints, the Senate Judiciary Committee, under the leadership of Senator Sam Erwin, held extensive hearings and investigations, resulting in the enactment of the Indian Bill of Rights (IBR) under Title II of the Civil Rights Act of 1968. The ten articles of the IBR contain most of the provisions enumerated in the first eight amendments of the U.S. Bill of Rights. Congress deliberately excluded a number of items in order not to interfere with the unique characteristics of the Indian tribes and their governmentss. The three most important excluded items are the First Amendment’s disallowance of religious establishments, the Second Amendment’s right to keep and bear arms, and the Seventh Amendment’s right of jury trials in civil suits. The IBR recognizes the right of counsel before tribal courts but only at the defendant’s “own expense.” Although the IBR requires the tribes to provide “equal protection of the laws,” it exempts the tribes from the Fifteenth Amendment’s prohibition of using race as a qualification for voting. In addition, the IBR includes the original Constitution’s ban on bills of attainder and ex post facto laws. For ten years, a significant number of people went to the federal courts accusing tribal authorities of ignoring provisions of the IBR. Tribal lawyers often complained that federal judges were conditioned by AngloAmerican views on individualism that were inconsistent with Native American culture. They also argued that the federal courts tended to disrespect established principles of tribal sovereignty. In a gender-discrimination suit, Santa Clara Pueblo v. Martinez (1978), the U.S. Supreme Court held that the IBR did not authorize individuals to sue the tribes in federal courts because the Congress had not explicitly authorized such suits. The Court reasoned that the tribes, as “semisovereign nations,” retained their rights to sovereign immunity unless “unequivocally” removed by federal legislation. The decision strengthened tribal self-determination, but at the cost of allowing tribal courts, if so inclined, to ignore most provisions of the IBR. As a result of the decision, the power of the federal courts to enforce the IBR was subsequently limited to habeas corpus relief for persons held in tribal custody. Advocates of women’s rights have been especially unhappy with the outcome of the Martinez ruling.

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Indigent criminal defendants / 221

Further Reading Wunder, John. “Retained by the People”: A History of the Indian Bill of Rights. New York: Oxfore Univ. Press, 1994. Thomas T. Lewis

INDIGENT CRIMINAL DEFENDANTS Description: Persons accused of crimes who, due to their poverty, are not able to adequately provide for their own defense. Relevant amendments: Fifth, Sixth Significance: In an adversary trial system, defendants who are not able to obtain legal representation, or pay other costs for their defense, will not receive a fair trial. The Supreme Court ruled in favor of appointment of counsel for these defendants in the 1960’s. Although social scientists have long debated the causes of crime, it is beyond dispute that the impact of the criminal justice system is felt most heavily among the most economically disadvantaged members of society. In city after city, young, unemployed men dominate the criminal dockets. Nearly two out of three incarcerated individuals lack a high school diploma, and less than 8 percent have ever attended college. Controversy concerns whether poverty causes crime or merely funnels deviants into relatively unremunerative and highly risky kinds of criminal activity, where they are more likely to be apprehended. Another theory is that these crime statistics reflect institutional class biases in the criminal justice system, such as the inability of the impoverished defendant to mount an adequate defense. The commitment to equal justice under law is severely tested by a criminal justice system that imposes further disabilities on the most disadvantaged members of the community. The Supreme Court noted in Griffin v. Illinois (1956), “There can be no equal justice where the kind of trial a man gets depends on the amount of money he has.” This egalitarian impulse was most completely manifest in right-to-counsel cases and seemed to peak during the late 1950’s and 1960’s. It was, however, tempered by considerations of federalism and the realization that public aid to all indigent defendants would be expen-

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Scottsboro defendant Haywood Patterson, who escaped from prison fifteen years after he and his fellow defendants were convicted. (National Archives)

sive and unpopular. In Powell v. Alabama (1932), also known as the Scottsboro case, the Court overturned rape convictions of seven itinerant African American youths. The youths were sentenced to death after oneday trials conducted in an atmosphere of racial hostility and at which they had been casually represented by an attorney unfamiliar with Alabama law who volunteered for the case on the morning of the trial. The Court found the trial to be fundamentally unfair. Adequate representation for such vulnerable defendants required the appointment, at public expense, of effective counsel with ample skill and time to prepare a credible defense. However, in Betts v. Brady (1942), the Court confined the right to appointed counsel in state prosecutions to cases in which special circumstances, not including mere poverty, rendered the defendant particularly vulnerable. The Right to Counsel. In Johnson v. Zerbst (1938), the Court found that the Sixth Amendment required the appointment of counsel for all federal felony trials, a right not extended to state legal systems until Gideon v. Wainwright (1963). Gideon well illustrated the issues presented by the indigent defendant. An unemployed drifter with a poor education and a record of petty crimes, Gideon was denied appointed counsel at his trial for

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breaking and entering a pool hall and stealing change from a cigarette machine. Forced to defend himself, Gideon failed to explore several credible defenses or to adequately cross-examine the state’s single—and dubious—witness. After the Court overturned his conviction, Gideon was tried a second time. At last represented by an attorney, he was acquitted. The principle of Gideon was extended to other areas of the criminal process but not comprehensively. Escobedo v. Illinois (1964) and Miranda v. Arizona (1966) extended the right to appointed counsel into the pretrial stages of the criminal process. Griffin required states to waive costs for filing appeals, in this case the expensive production of a trial transcript. The right to counsel was also extended to sentencing but only to the initial appeal. In Ross v. Moffitt (1974), the Court held that the state need not supply appointed counsel for discretionary appeals to the state supreme court. Presumably, no such right exists for appeals to the U.S. Supreme Court, although the Court has appointed counsel once a case is accepted for review. In Gagnon v. Scarpelli (1973), the “special circumstances” rule of Betts was revived for probation revocation hearings, requiring the appointment of counsel only for probationers who were unusually disadvantaged beyond their poverty. Perhaps the clearest example of the Court’s lessened favor of the appointment of counsel is Argersinger v. Hamlin (1972), in which the Court declined to extend the Gideon precedent to all misdemeanor cases. It ruled that the trial court needs to provide assistance of counsel only in cases in which the contemplated punishment is incarceration. Misdemeanor courts are known for their summary procedures, in which the mere presence of counsel often results in dismissal of charges. Because even conscientious judges operate under bureaucratic pressure to keep up with heavy caseloads, Argersinger is widely ignored in practice. Most misdemeanor defendants are unlikely to be incarcerated and are anxious to pay their fines and be done with it. For the indigent, however, even a modest fine can have a significant impact on his or her living standard. Questions of Fairness. An issue yet to be effectively addressed involves the adequacy of counsel for poor defendants, whether appointed or retained. Many defendants are represented by court-appointed public defenders. Despite their talent and good intentions, public defenders tend to operate under the pressure of unrealistic caseloads and inadequate funding. Defendants who, like the Scottsboro men, first encounter their attorney just before trial are not unusual. Without time or resources to

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conduct a thorough investigation of the case, public defenders are often reduced to arranging a plea bargain. The economics of criminal defense work often place the private attorney in a similar position. If access to judicial process is fundamental to the fair administration of criminal justice, it would be expected that the Court would facilitate the indigent’s access to its own forum. The Court permits petitioners for certiorari to file in forma pauperis, or as a pauper. The resulting waiver of the Court’s modest filing fees may be more symbolic than substantive, since less than 1 percent of such petitions are accepted for review. In the 1990’s the numbers of in forma pauperis petitioners was the fastest growing segment of the Court’s caseload, which came to account for more than half of all petitioners. Many of these are filed by prisoners alleging deficiencies in their convictions. Most are frivolous, although an occasional in forma pauperis petition, like that in Gideon, results in a significant decision. The Court now requires a person filing in forma pauperis to provide documentation of his or her impecunious circumstances. Further Reading Casper, Jonathan. American Criminal Justice: The Defendant’s Perspective. Englewood Cliffs, N.J.: Prentice-Hall, 1972. Cole, David. No Equal Justice: Race and Class in the American Criminal Justice System. New York: New Press, 1999. Feeley, Malcome. The Process Is the Punishment: Handling Cases in Lower Criminal Court. New York: Russell Sage, 1992. Lewis, Anthony. Gideon’s Trumpet. New York: Random House, 1989. Reiman, Jeffrey H. The Rich Get Richer and the Poor Get Prison: Ideology, Class, and Criminal Justice. Needham, Mass.: Allyn & Bacon, 1997. John C. Hughes

JAPANESE AMERICAN RELOCATION Description: The removal of more than 112,000 Japanese immigrants and their children, most of whom were U.S. citizens, to detention camps as a result of President Franklin D. Roosevelt’s Executive Order 9066 in 1942.

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Relevant amendment: Fifth Significance: The removal of tens of thousands of U.S. citizens to detention camps and the restrictions placed on the movement of thousands of others, purely on the basis of national origin, were found to be unconstitutional acts by the Supreme Court, though most of these wartime restrictions were not actually lifted until 1945. In 1790 the Nationality Act established the standards to be used for U.S. citizenship and naturalization. The law stated that only free white persons were eligible to become U.S. citizens. The primary intent of this law was to create a legal distinction between people of African descent and European immigrants. Although the law did not specifically address Asian immigrants, whose numbers were almost insignificant at the time, in practice those who entered were categorized as nonwhites and therefore denied citizenship. After the Civil War, the Fourteenth Amendment (ratified in 1868) proclaimed that anyone born in, and subject to, the jurisdiction of the United States would be a U.S. citizen. The intent of this amendment was to grant citizenship to the black former slaves in the South. However, in 1870 Congress passed legislation to amend the naturalization law, effectively retaining the prohibition of citizenship for nonwhite immigrants. The result was that only white people or people of African descent already in the United States could become naturalized citizens. Neither Asian immigrants nor their U.S.-born children were granted these rights. In 1898 the Supreme Court ruled in the United States v. Wong Kim Ark that anyone born in the United States could became a citizen. This decision was the result of a three-year lawsuit by an American-born Chinese man, Wong Kim Ark, who was detained and prevented from reentering the United States after returning from a trip to China. Although this decision upheld birthright citizenship for all U.S.-born Asians, the Supreme Court still acknowledged the power of Congress to restrict naturalization. In Ozawa v. United States (1922), the Court rejected the application for citizenship of Takao Ozawa, who had been raised and educated in the United States but was born in Japan, judging him ineligible for naturalization because he was nonwhite. Also in 1922, Congress passed the Cable Act. This law provided that “any woman citizen who marries an alien ineligible to citizenship shall cease to be a citizen of the United States.” The justification for this act was that civil law generally recognized a husband’s citizenship over the wife’s.

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An Asian American or white woman with U.S. citizenship who married an Asian immigrant lost her citizenship. If the marriage terminated by divorce or death, the white woman was eligible to reapply for citizenship, but the Asian American woman could not. The law was amended in 1931 to permit Asian American women married to Asian immigrants to retain or regain their U.S. citizenship, but it was repealed in 1936. The Seeds of Relocation. After the first Japanese arrived in Hawaii in 1868, many workers immigrated to the island. Immigration to the U.S. mainland, however, largely remained limited to wealthier, more highly educated Japanese. After Hawaii became an American possession in 1898, the number of laborers who reached the mainland increased significantly. In 1899, 2,844 Japanese arrived on the mainland, but two years later, in 1900, 12,635 Japanese entered the continental United States. Many white Americans viewed the influx of Japanese and Chinese immigrants as an economic and cultural threat, and racial tensions grew, especially on the West Coast where most Asian immigrants had settled. Pressure from the western states forced the federal government to restrict Japanese immigration by means such as the Gentlemen’s Agreement with Japan (1908). The Gentlemen’s Agreement prohibited immigration by Japanese men; however, it permitted the wives of immigrants already in the country to enter. Ironically, the agreement actually increased immigration because immigrant men believed that they must immediately send for their wives in Japan or risk permanent separation. Many single men hurriedly sent pictures of themselves to Japan to find wives or asked relatives and friends to send pictures of prospective brides willing to come to the United States. Thus, many Japanese women, while still in Japan, married Japanese men living in the United States without ever seeing more than a photo; these “picture brides” crossed the ocean by themselves with visas sent by their husbands in the United States. To stem this great influx, Congress passed the Immigration Exclusion Act of 1924, virtually barring any further Japanese immigration. World War II. Immediately after Japan bombed Pearl Harbor in 1941, Lieutenant General John L. DeWitt (military commander of the western defense zone) suggested removal of all persons of Japanese ancestry— citizens or aliens—from all West Coast states. Many Japanese Americans’ homes were searched by Federal Bureau of Investigation agents, and

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Internee resting in a typical barracks room at the government’s Manzanar camp in California’s eastern Sierras. (National Archives)

within four days, 1,370 Japanese immigrants had been taken from their homes and places of business with no warning. Less than a month after Pearl Harbor, the Treasury Department froze the financial assets of Japanese nationals and bank accounts registered under Japanese-sounding names. Although the Treasury Department soon eased these restrictions, Japanese Americans were not allowed to withdraw more than one hundred dollars per month from the bank. The federal government also seized money from Japanese American clubs and organizations; for example, in 1942 the government took seventy thousand dollars from the Japanese Association of New York, returning fifty thousand of it in 1953. In February, 1942, just one week after DeWitt submitted the final recommendation for relocation, President Franklin D. Roosevelt signed Executive Order 9066, which sent 112,350 people of Japanese descent to detention camps, describing them as either “enemy aliens” or “strangers from a distant shore.” This order applied only to the mainland; in Hawaii, where one-third of the population was of Japanese ancestry, no restrictions were ever enacted. In March of 1942, the draft status of Japanese Americans was reclassified, and men of military age were exempted un-

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der a 4-F classification, which implied that being of Japanese ancestry was a physical defect, eliminating the possibility of military service. In 1943, however, the government changed this policy, making Japanese American men subject to the draft. By the end of the war in 1945, almost 40,000 Japanese Americans served in the U.S. armed services, several thousand of them coming from the detention camps. Supreme Court Decisions. Japanese Americans soon questioned the legality of the executive order and other government policies. Some objected to the loss of property on the grounds of due process; some questioned the right of the government to restrict the liberty and movement of U.S. citizens; and others disputed the moral authority of the government to force men in detention centers to join the military. Most of these challenges were eventually heard by the Supreme Court, though the Court itself avoided acting on the constitutionality of exclusion and actual detention until near the war’s end. Min (Minoru) Yasui, a Japanese American lawyer and U.S. citizen, doubted the legality of the curfews for Japanese Americans that were imposed soon after the start of the war. He deliberately violated a curfew in Portland in 1942 to force the courts to hear this issue. After he was arrested, his U.S. citizenship was taken away because he had studied in a Japanese language school and had worked for the Japanese consulate. Though a lower court found the curfew unconstitutional, the Supreme Court in Yasui v. the United States (1943) reversed this finding, claiming that the government possessed extraordinary powers in time of war, especially in the light of Japanese Americans’ “continued attachment” to Japan. The same year, Gordon Hirabayashi, also a U.S. citizen of Japanese descent, was arrested for violating curfew. Hirabayashi turned himself in to the Seattle office of the Federal Bureau of Investigation for failing to report for imprisonment. After Hirabayashi had spent five months in jail, the Supreme Court, in Hirabayashi v. United States (1943), unanimously upheld the constitutionality of the curfew. He was ordered to serve another ninety days of work on a government road crew. In October, 1944, in Korematsu v. United States, the Court upheld the constitutionality of the exclusion order by a 6-3 vote. Fred Korematsu, a U.S. citizen of Japanese descent, was arrested for trying to avoid incarceration in a detention camp. He had plastic surgery done on his nose and eyelids to look less Japanese and changed his name to Clyde Sarah, a Spanish-Hawaiian sounding name. Unlike Yasui and Hirabayashi, Kore-

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matsu did not wish to create a test case; he just wanted to stay with his fiancé who was not of Japanese ancestry. In July, 1942, attorney James Purcell filed a writ of habeas corpus with the federal court in San Francisco on behalf of Mitsuye Endo, an Americanborn civil service employee. Although the cases of Yasui, Hirabayashi, and Korematsu challenged the curfews and exclusion orders, Endo’s case challenged the legality of the detention camps themselves. At first, lower courts found against Endo. However, after a two-year struggle, in December, 1944, in Ex parte Endo, the Supreme Court set her free, saying that because she had been found to be a loyal citizen, the War Relocation Authority could not detain her against her will. The Court, thus, ruled that detention of citizens was unconstitutional and loyal U.S. citizens of Japanese descent were free to move anywhere in the United States. In spite of the federal government’s discriminatory treatment of Japanese Americans, the Court’s decisions showed progress toward protecting this group’s rights. For example, Fred Oyama, a U.S. citizen of Japanese descent became the titleholder of land in California that his immigrant parents were prohibited from owning because of the California Alien Land Act of 1913. While the Oyama family was in the detention camps, the state government attempted to seize the land, and Fred Oyama sued under the equal protection clause. The Supreme Court’s 6-3 decision in Oyama v. California (1948) supported Oyama, stating that “the rights of a citizen may not be subordinated merely because of his father’s country of origin.” These various wartime Supreme Court decisions were instrumental in establishing equal rights for Japanese Americans. By the early 1950’s most state and local alien land acts and other discriminatory ordinances against Japanese had been repealed. However, these decisions also represent a substantial cost to all Americans’ constitutional liberties. As was evident in the Yasui, Hirabayashi, and Korematsu decisions, the guarantees of due process in the Constitution are not unambiguous. If the government can claim military necessity, the Court may uphold the restriction of individual liberties. The Legacy of Evacuation. One-third of the people interned by the War Relocation Authority were not American citizens. This lack of citizenship does not necessarily indicate a lack of allegiance to or intent to remain in the United States, however, because Japan-born immigrants were not eligible to naturalize regardless of their wishes. Although Chinese im-

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migrants were allowed to naturalize in 1943, and Indians and Filipinos in 1946, Japanese were not permitted to gain citizenship until the McCarran-Walter Act in 1952. In the late 1960’s, Japanese American groups in San Francisco, Southern California, and Seattle began to agitate for compensation for the detention and subsequent losses suffered during World War II. After much legal paperwork and protest, in 1988 Japanese Americans were recognized as being guilty of nothing but being of the wrong ancestry at the wrong time. Abe Fortas, who had overseen the War Relocation Authority while undersecretary of the interior, called the evacuation “a tragic error.” By 1993 some sixty thousand surviving Japanese American former detainees received compensation in the amount of twenty thousand dollars per person. Further Reading Perhaps the best place to begin the study of the legal aspects of the Japanese American incarceration is Angelo N. Ancheta’s Race, Rights, and The Asian American Experience (New Brunswick: Rutgers University Press, 1998). Ancheta, a civil rights attorney, covers legal issues historically, looking at both Japanese Americans and other Asian Americans in the United States. Masako Herman’s The Japanese in America 1843-1973 (New York: Oceania Publications, 1974) is highly recommended for its chronology of Japanese American lawsuits and documentation on the various laws, acts, and orders. Democracy on Trial: The Japanese American Evacuation and Relocation in World War II (New York: Simon & Schuster, 1995) by Page Smith helps link military, political, economic, racial, and personal motivations of the relocation. Paul R. Spickard’s Japanese Americans: The Formation and Transformations of an Ethnic Group (New York: Twayne, 1996) reports in detail demographic data historically for each state. Roger Daniels has made a good connection between Chinese and Japanese experiences in the United States in his Asian America: Chinese and Japanese in the United States Since 1850 (Seattle: University of Washington Press, 1988), as does Sucheng Chan in Asian Americans: An Interpretive History (New York: Twayne, 1991). Nobuko Adachi

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JUDICIAL SCRUTINY Description: Standard by which the Supreme Court evaluates the constitutionality of certain governmental actions. The three levels of judicial scrutiny are strict scrutiny, intermediate (or heightened) scrutiny, and ordinary (or minimum) scrutiny. Relevant amendments: First through Tenth Significance: These levels of judicial scrutiny and their consistent usage by the Court enable institutions and citizens alike to feel comfortable that similar cases will be adjudicated in similar ways. The Supreme Court employs tests, or standards of review, with the aim of giving parties to a specific case some reasonable expectation as to the outcome of their particular constitutional claims. The use of standards permits each party to know, prior to the actual hearing, how the judiciary will probably approach the case and how the judiciary is likely to resolve any single issue. Variations in levels of review also signify the Court’s willingness to provide (through more rigorous tests) increased judicial protection for “discreet and insular minorities,” as it did in United States v. Carolene Products Co. (1938). These tests can take many forms and can be used in many different constitutional inquiries, but the most common tests are those that involve the Court’s scrutinizing governmental activity. The Three Levels. The Court uses three levels of judicial scrutiny. The lowest standard of review is defined as ordinary, or minimal, scrutiny. Here, the burden to demonstrate a violation of the Constitution falls on the individual, as the Court presumes the governmental action in question is constitutional. When applying an ordinary level of scrutiny, the Court employs the rational basis test, which asks the government to demonstrate that the action is reasonably related to a legitimate governmental objective. If the government can do so, then the Court will reject the argument of the petitioner and the action will be deemed constitutional. The Court regularly uses ordinary scrutiny in cases involving economic regulation, such as Williamson v. Lee Optical Co. (1955), and ones in which the legislative classification does not warrant increased judicial protection, such as Massachusetts Board of Retirement v. Murgia (1976). An intermediate, or heightened, level of scrutiny is applied by the Court when a government action potentially discriminates on the basis of

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gender or illegitimacy and therefore violates the equal protection clause of the Fourteenth Amendment. The impetus for applying a more rigorous test in the areas of gender and illegitimacy stems from the perception that these groups require additional—or heightened—judicial protection due to their status as (numerical or de facto) minorities. Because of the heightened nature of the review, the Court does not adopt the presumption of constitutionality standard found in the ordinary level of scrutiny but instead mandates that the government demonstrate more than simply a reasonable purpose for the law. Intermediate review requires that the government identify an important governmental objective that is substantially furthered by that particular action. Craig v. Boren (1976) is the principal case that formally introduced an intermediate level of scrutiny. In Craig, the Court addressed the issue of gender discrimination by reviewing an Oklahoma statute that prohibited the sale of 3.2 percent beer to women under the age of eighteen and men under the age of twenty-one. In an opinion written by Justice William J. Brennan, Jr., the Court ruled that under the newly instituted intermediate standard of review, the Oklahoma legislature could not satisfy the requirements set up by the test. The law treating men differently from women, Brennan argued, “did not serve important governmental objectives and [was not] substantially related to [the] achievement of those objectives.” The third level of judicial scrutiny is the most difficult for the government to satisfy. Strict scrutiny refers to the standard used by the Court when assessing the constitutionality of governmental actions that may interfere with fundamental rights or potentially discriminate on racial grounds. In the area of racial discrimination, the Court, in Korematsu v. United States (1944), noted that “all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny.” As such, the Court adopts a presumption of unconstitutionality when applying this most rigorous test; it asks the government to articulate a compelling reason for discriminating based on race or impinging on a fundamental right. Additionally, the Court insists that the government action be closely related to the state’s compelling objective. If the government is going to discriminate based on racial classifications or regulate one of the most fundamental freedoms, the Court demands that it have an extraordinarily important reason for doing so. Needless to say, very few governmental actions have ever satisfied the strict scrutiny test.

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Some Guidelines. Distinctions between differing levels of review—and the subsequent application of the actual tests—are not always easy to define. The difference between an important governmental objective and a legitimate one or between means that are closely related and ones that are merely substantially related are not always clear. However, the Court has provided some guidelines for the application of the various tests. A compelling governmental interest is one that is of paramount importance, and a close relationship is one in which the Court is satisfied that there is no alternative, that the government has no option but to interfere with a fundamental right or discriminate based on race. Korematsu v. United States (1944) provides the most cited example. The case involved the Court’s review of the constitutionality of President Franklin D. Roosevelt’s executive order mandating that people of Japanese ancestry on the West Coast adhere to certain restrictions on their freedom (including curfews, detentions, and relocations) during the early part of World War II. In upholding the order, the Court claimed that a “pressing public necessity” may justify the violation of certain freedoms and discrimination against certain groups. Although the Court applied the strict scrutiny test, the government cited national security as a

Relocation order posted in San Francisco in April, 1942. (National Archives)

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compelling reason for detaining Japanese Americans. Additionally, the government claimed that in order to maintain national security during such a major conflict, it had no alternative but to restrict the extension of some basic freedoms to a group of Americans. Korematsu is the only case in which the Court applied the strict scrutiny test to a racially based restriction and upheld the law. Further Reading Chemerinsky, Erwin. “Breakdown in the Levels of Scrutiny.” Trial 33 (March, 1997): 70-71. Coffin, Elizabeth Buroker. “Constitutional Law: Content-based Regulations on Speech, a Comparison of the Categorization and Balancing Approaches to Judicial Scrutiny.” University of Dayton Law Review 18 (Winter, 1993): 593-633. Levinson, Sanford. “Tiers of Scrutiny—from Strict Through Rational Bases—and the Future of Interests: Commentary on Fiss and Linde. Albany Law Review 55 (1992): 745-761. Shaman, Jeffrey M. “Cracks in the Structure: The Coming Breakdown of the Levels of Scrutiny.” Ohio State Law Journal. 45 (1984): 161-183. Wexler, Jay D. “Defending the Middle Way: Intermediate Scrutiny as Judicial Minimalism.” George Washington Law Review 66 (January, 1998): 298-352. Beau Breslin

JURY, TRIAL BY Description: Legal process in which a group of citizens sworn as jurors hears evidence presented at trial and then collectively decides on the accused’s culpability for a crime or civil offense. Relevant amendments: Sixth, Seventh Significance: Supreme Court rulings affirm the importance of trial by jury as a protection against government oppression of the accused and as an avenue for citizen participation in the democratic process. Article III, section 2, of the U.S. Constitution provides the right to trial by jury for all crimes except impeachment, and the Seventh Amendment grants this right in civil cases involving twenty dollars or more. The Sixth

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Amendment provides the right to be tried by an impartial jury. In Palko v. Connecticut (1937), the Supreme Court interpreted these constitutional provisions as applicable only in federal trials, reasoning that trial by jury was not a fundamental right and therefore was not applicable to the states through the Fourteenth Amendment’s due process clause. This meant states were not required to provide jury trials but could choose to do so. The Court reversed its position in Duncan v. Louisiana (1968), ruling that trial by jury in criminal cases is a fundamental right applicable to the states. The Court’s reasoning in Duncan emphasized the importance of jury trials as part of due process and as a significant aspect of participatory democracy. In subsequent cases, the Court clarified the scope of the right to trial by jury, finding it applicable in any case involving a minimum possible sentence of six months of incarceration and in some cases with a shorter penalty. However, the Court did not extend the Seventh Amendment requirement of trial by jury in civil cases to the states, instead leaving state governments to decide this. Despite the Court’s recognition of the importance of trial by jury, minors in the juvenile justice system lack this right. The Court, in the case In re Gault (1967), reasoned that because juvenile court proceedings are not adversarial (in contrast to adult courts), jury trials are not necessary. However, juveniles tried in adult court gain the right to trial by jury. Historically, jurors had the right to decide questions of both law and fact, but in Sparf and Hansen v. United States (1899), the Court restricted jurors to deciding issues of fact. In their capacity as fact finders, jurors in criminal trials decide whether the prosecution has proven beyond a reasonable doubt that the defendant is guilty as charged, a requirement the Court noted in In re Winship (1970) that is intended to protect against erroneous convictions. Jurors in most civil cases use the less stringent “preponderance of the evidence” standard. In Witherspoon v. Illinois (1968), the Court emphasized the role of jurors as the conscience of the community. Further Reading Abramson, Jeffrey. We, the Jury. New York: Basic Books, 1994. Finkel, Norman J. Commonsense Justice: Jurors’ Notions of the Law. Cambridge, Mass.: Harvard University Press, 1995. Kalven, Harry, Jr., and Hans Zeisel. The American Jury. Chicago: University of Chicago Press, 1970.

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Litan, Robert E., ed. Verdict: Assessing the Civil Jury System. Washington, D.C.: Brookings Institution, 1993. Diana R. Grant

JURY COMPOSITION AND SIZE Description: Composition and number of members in a jury, a group of citizens brought together to hear testimony and determine a verdict in a trial. Relevant amendment: Sixth Significance: The Supreme Court shapes how the right to trial by jury occurs in practice, addressing key issues such as jury selection procedures, composition, size, and decision rule. The right to trial by jury is guaranteed by Article III of the U.S. Constitution as well as by the Sixth, Seventh, and Fourteenth Amendments. Although the right to jury trial is largely immune to legislation, the particulars, including jury size, selection, and composition, are not as firmly fixed, and therefore, have been the subject of legislation and challenges in the Supreme Court. A common method of jury selection before 1968 was the “key man” system, relying on prominent citizens in the community to serve. This meant many citizens were excluded from jury duty, despite being legally eligible. As early as 1880 in Strauder v. West Virginia, the Court had struck down a state law excluding African American men from jury duty as a violation of equal protection. Nonetheless, the practice of excluding minorities from jury service continued unacknowledged by the Court, as illustrated by its decision in Swain v. Alabama (1965) allowing exclusion of potential jurors on the basis of race. Similarly, although women became eligible for jury duty between 1870 and 1940 (depending on locale), most states continued to exclude women from jury pools (the groups from which jurors are drawn). The Court addressed this in Taylor v. Louisiana (1975), striking down the practice of including women in jury pools only if they volunteered. In 1968 Congress enacted the Jury Selection and Service Act, requiring that federal jury pools be made up of citizens drawn at random “from a representative cross section of the community.” In Taylor, the Court ex-

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tended this requirement to states. The random selection requirement substantially changed the methods used to create jury pools but did not address how individual jurors were selected during jury questioning. However, the new focus on inclusiveness raised new jury selection and composition questions for the Court, leading it to revise its earlier position in Swain on the use of peremptory challenges. In a series of cases, the Court ruled that peremptories cannot be used to exclude potential jurors solely on the basis of race (Batson v. Kentucky, 1986) or gender (J. E. B. v. Alabama ex rel. T. B., 1994). In Holland v. Illinois (1990), the Court clarified that it is the process of selecting the jury pool that must be representative rather than the juries themselves. The Court noted that the use of twelve-person juries and the unanimous decision rule are simply historical customs rather than legal requirements. Nonetheless, it supported the tradition of jury unanimity until 1972, when it allowed majority verdicts in state criminal trials (Apodaca v. Oregon; Johnson v. Louisiana). States can also use majority decision rules in civil cases; however, federal criminal and civil cases retain a unanimity requirement. In Williams v. Florida (1970), the Court allowed six-person juries in state criminal cases, provided they use a unanimous decision rule. The Court’s reasoning noted the lower costs of smaller juries but misconstrued the implications of research examining the influence of jury size on deliberations. The Court set the minimum jury size by rejecting five-person juries in Ballew v. Georgia (1978). Further Reading Abramson, Jeffrey. We, the Jury. New York: Basic Books, 1994. Fukurai, Hiroshi, E. Butler, and R. Krooth. Race and the Jury. New York: Plenum, 1993. Hans, Valerie, and Neil Vidmar. Judging the Jury. New York: Plenum, 1987. Diana R. Grant

LIBEL Description: Printed or broadcast defamation, which entails false statements holding an individual up to ridicule, contempt, or hatred, or causing an individual to be avoided by others. Relevant amendment: First

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Significance: Libel law is an attempt to balance individuals’ interest in reputation against the media’s freedom of the press. In 1964 the Supreme Court began to shift from favoring individuals to favoring the media in cases involving libel. Victims of libel, or defamatory false statements, sue the media for damages. Courts award monetary compensation to victims for the injury they suffered and stipulate punitive measures to chastise the press and thereby deter it and media companies from libeling others. The Supreme Court long considered defamatory statements irrelevant to the First Amendment because the statements did not contribute to the exposition of ideas and search for truth envisioned by those who wrote the amendment. The limited value of the statements was outweighed by the need to protect individuals’ reputation. Therefore, the Court allowed states to fashion libel law as they saw fit, and it rarely heard libel cases. One exception was Beauharnais v. Illinois (1952), which involved “group libel” (later called “hate speech”). The Court upheld the law. Actual Malice. In New York Times Co. v. Sullivan (1964), the Court, under Chief Justice Earl Warren, began to shift the balance in libel doctrine toward the media. In the early 1960’s, the police commissioner of Montgomery, Alabama, sued The New York Times for printing an ad, with minor inaccuracies, bought by black clergymen protesting the treatment of civil rights demonstrators in the city. Although the ad did not mention the police commissioner by name or title, he claimed that it attacked him implicitly. Although he did not claim that it caused him any injury, he did not have to under state law, and the jury awarded him half a million dollars. Another county commissioner sued The New York Times for the same ad and was also awarded half a million dollars. By the time the case reached the Court, eleven more libel suits had been brought by local or state officials in Alabama against The New York Times or the Columbia Broadcasting Service for seven million dollars. There was nothing unusual about Alabama’s law, which resembled other states’ laws. The justices, then, could see that libel laws could be used by public officials to punish the press for criticism—in this case, a northern newspaper for coverage of southern race relations—even if the inaccuracies were minor and the officials suffered no real injury. The Court’s ruling made it harder for plaintiffs who were public officials to win libel suits. It established the actual malice test, which requires

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plaintiffs to prove that the defamatory statements were made with knowledge of their falsity or with reckless disregard for their truth or falsity. This standard is somewhat ambiguous, but the Court made clear that recklessness is beyond carelessness, which is the usual basis for establishing negligence in lawsuits. Despite its name, the test does not revolve around the everyday meaning of the word “malice.” The plaintiff does not have to show maliciousness; and even if the plaintiff does show maliciousness, this showing by itself does not meet the test. A reporter can be “out to get” an official, publish defamatory statements, and still not be found guilty of actual malice. Maliciousness is relevant only if it helps the official prove that the reporter knew the statements were false or published them with reckless disregard for their truth or falsity. The Court recognized that this test would allow the press to publish more false statements but insisted that this result was necessary to allow breathing room so the press can enjoy its full rights under the First Amendment. Application of the Test. The Court solidified its ruling by applying the actual malice test to an array of public officials, including judges (Garrison v. Louisiana, 1964); county attorneys (Henry v. Collins, 1965), court clerks (Beckley Newspapers v. Hanks, 1967), and law enforcement officers, including police on the beat (St. Amant v. Thompson, 1968, and Time v. Pape, 1971). In applying the test to the manager of a small county-owned and operated ski area, the Court showed how far down the ranks of public employees its definition of public officials would extend. The Court also solidified its ruling by indicating that reckless disregard meant having serious doubts about the truth of the statements in St. Amant. Even being extremely sloppy would not be considered reckless. At the same time, the Warren Court extended its ruling by applying the actual malice test to public figures in 1967 in Curtis Publishing Co. v. Butts and Associated Press v. Walker. Public figures are people who are well known or who have sought public attention. The Court’s justifications were that the distinction between the public and private sectors has blurred and that public figures, like public officials, often play an influential role in society and also have sufficient access to the media to rebut any false accusations against them. This ruling made it harder for public figures to win libel suits. The Warren Court classified as public figures a university athletic director, who was not paid by the state and therefore not a public official

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(Curtis) and a retired air force general (Associated Press). The Court, under Chief Justice Warren E. Burger, classified as public figures a real estate developer who was engaged in a controversy with the local school board (Greenbelt Cooperative Publishing v. Bresler, 1970) and candidates for public office (Monitor Patriot Co. v. Roy, 1971, and Ocala Star-Banner v. Damron, 1971). A plurality of the early Burger Court sought to extend The New York Times doctrine by applying the actual malice test to private persons embroiled in public issues (Rosenbloom v. Metromedia, 1971). They maintained that people are all public persons to some degree and that public officials and public figures are private persons in some ways. The key was whether public issues were involved. If so, the press should feel free to report on these issues for the public’s benefit. The plurality’s views, if adopted by a majority of the justices, would have made it harder for private persons to win libel suits. As more holdovers from the Warren Court retired from the Burger Court, the new majority concluded that the balance had tipped too far toward the First Amendment and away from guarding the reputations of private persons. In 1974 a majority ruled that private persons, even if embroiled in public controversies, would not have to meet the actual malice test to win compensatory damages. (States could set the exact standard, but plaintiffs would have to show at least negligence by the press.) However, they would still have to prove actual malice to win punitive damages (Gertz v. Robert Welch, 1974). The justices sympathized with private persons’ desires to be compensated for any injuries they suffered but not their efforts to be awarded additional, punitive damages, which often were sizable and unrelated to the severity of the injuries. With this ruling, the Burger Court completed the process of nationalizing and constitutionalizing libel law—making the law conform to certain national constitutional standards, rather than allowing it to develop through the process of state common law—that the Warren Court began in The New York Times. The Burger Court also began to define the public figure category narrowly. The Court held that plaintiffs could be considered public figures if they have general fame or notoriety to the people exposed to the defamatory statements. In Gertz, a lawyer who was well known in legal and civic circles in Chicago was not known by the general population of the city, so he was not deemed a public figure. A socialite in Palm Beach, Florida, who was so prominent that she subscribed to a local clipping service, was not known outside of her community, so she was not deemed a public fig-

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Libel / 241

ure in a lawsuit against a national publication (Time v. Firestone, 1976). Alternatively, the Court held that plaintiffs could be considered public figures if they thrust themselves into a public controversy. However, a lawyer who represented a family who sued a police officer in a controversial case (Gertz) and a scientist who applied for federal funds for research (Hutchinson v. Proxmire, 1979) were not classified as public figures. The Court ruled that they were doing their jobs rather than thrusting themselves into public controversies. Thus, these plaintiffs, as private persons, did not need to meet the actual malice test to win compensatory damages. The Burger Court also clarified the point that public issues must be involved before the constitutional standards developed in libel cases could be invoked by the defendants in libel suits. Dun and Bradstreet, which had issued an inaccurate credit report, argued that as a widely known company, it should be considered a public figure (and, therefore, the plaintiff would be forced to prove actual malice). However, the Court insisted that this was a private dispute, rather than a public issue, and as such Dun and Bradstreet was not entitled to any First Amendment protection in Dun and Bradstreet v. Greenmoss Builders (1985). The Rehnquist Court. Under the guidance of Chief Justice William H. Rehnquist, the Court held that companies can be considered public figures if the dispute involves a public issue. Bose Corporation sued Consumer Reports for a magazine article critical of the sound of Bose speakers. The article addressed a subject of interest to the public, so it was considered a public issue and Bose Corporation was deemed a public figure (Bose Corp. v. Consumers Union of the United States, 1984). Although the Rehnquist Court reversed or eroded many rulings made by the Warren and Burger Courts, it maintained protection for media defendants in decisions involving the burden of proof in libel suits in Philadelphia Newspapers v. Hepps (1986) and Anderson v. Liberty Lobby (1986) and the attempt to circumvent libel law by suing for torts that have easier standards for plaintiffs in Hustler Magazine v. Falwell (1988). In Masson v. New Yorker Magazine (1991) the Court gave leeway to reporters, when quoting individuals, to clarify or condense direct quotations as long as reporters do not materially alter the meaning of the statements. For statements to be considered defamatory, they must be capable of being proven false. The Rehnquist Court found that they must have been asserted as facts, rather than mere opinions in Milkovich v. Lorain Journal Co. (1990). Accordingly, it found that parodies cannot be defamatory,

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even if they humiliate their subjects in Hustler Magazine v. Falwell. The Supreme Court’s doctrinal changes beginning in 1964 reduced the total number of libel suits filed and also the success rate for plaintiffs who are public officials or figures. Only one out of ten of these plaintiffs wins his or her suit. Further Reading Anthony Lewis’s Make No Law (New York: Random House, 1991) is a readable case study of New York Times Co. v. Sullivan. Harry Kalven, one of the foremost First Amendment scholars at the time, analyzed the landmark case in “The New York Times Case: A Note on ‘The Central Meaning of the First Amendment,’” Supreme Court Review (1964): 191. James Kirby’s Fumble (New York: Dell, 1986) is a fascinating case study of Curtis Publishing Co. v. Butts. Kirby, a lawyer hired by the Southeastern Conference to investigate the allegations that gave rise to the suit—that two college coaches conspired to fix a football game between their teams— reports his conclusions. Renata Adler’s Reckless Disregard (New York: Alfred A. Knopf, 1986) examines a pair of prominent cases that never reached the Supreme Court—the libel suits of U.S. general William Westmoreland against the Columbia Broadcasting Service and Israeli general Ariel Sharon against Time magazine. The decisions of juries in these and other libel suits are examined in Trial by Jury (New York: Simon & Schuster, 1990), edited by Stephen Brill, which shows the difficulty jurors have when asked to apply the actual malice test. The impact of the Court’s decisions involving public officials and figures is analyzed in Randall Bezanson, Gilbert Cranberg, and John Soloski’s Libel Law and the Press (New York: Free Press, 1987). Proposed reforms in libel law are addressed in Lois Forer’s A Chilling Effect (New York: Norton, 1988). John Gruhl

LOYALTY OATHS Description: Sworn promises not to be disloyal to the government Relevant amendment: First Significance: During the 1940’s, 1950’s, and 1960’s loyalty oaths served as a form of censorship to suppress “subversive” speech by public employees, teachers, and union leaders

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Loyalty oaths / 243

In the late 1940’s, when many U.S. government officials and other public employees were suspected of harboring communist sympathies, the federal government and many state governments began requiring loyalty oaths to be administered to those working on the public payroll. These oaths were first used by the administration of President Harry S. Truman, who issued Executive Order 9835 on March 21, 1947, creating the Loyalty Review Board to coordinate loyalty policies. The board was empowered to dismiss workers or refuse to hire anyone who might be disloyal to the government. Initially, Congress allowed only dismissals from limited numbers of executive departments, such as State and Defense (and, later, Treasury, Commerce, and Justice). Under Truman’s successor, President Dwight D. Eisenhower, the policy extended to all executive branch departments. Eisenhower also tightened the loyalty program through Executive Order 10540, under which anyone suspected of disloyalty was required to prove otherwise. Decisions Upholding Loyalty Oaths. The first instance in which such an oath was challenged in court occurred in 1950 in American Communications Association v. Douds. The challenge arose from a section of the Labor Management Relations Act of 1947 mandating that in order for a labor union to benefit from national labor laws, all officers had to sign affidavits stating that they were not Communist Party members and did not believe in the party’s goals. The U.S. Supreme Court, in an opinion written by Chief Justice Fred M. Vinson, ruled 5-1 that the law was in the purview of Congress through its power to regulate interstate commerce. Only Justice Hugo L. Black dissented, stating that the law violated the First Amendment’s bans on regulation of speech and assembly. The next year three more cases came before the Court challenging loyalty oaths. In April, in Joint Anti-Fascist Refugee Committee v. McGrath (1951), the authority of the U.S. attorney general to list organizations that were deemed subversive was declared constitutional. The Court, however, also decided that the attorney general had exceeded his bounds in including three groups, the Joint Anti-Fascist Refugee Committee, the National Council of American-Soviet Friendship, and the International Workers Order, on the list without allowing them a hearing. The Court recognized this as a due-process case and avoided ruling on any First Amendment issue. The Court also rendered 1951 decisions in Gerende v. Board of Supervi-

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sors of Elections and Garner v. Public Works of the City of Los Angeles. The former concerned a Maryland law that required candidates running for public office to sign affidavits affirming that they had no intention of plotting a government overthrow. The law was upheld by the Court in a 7-2 decision, with only Black and William O. Douglas dissenting. In the majority opinion, Justice Tom C. Clark wrote that the law did not constitute a bill of attainder, as had been charged by the plaintiffs, but was merely a qualification for running. Clark also spoke for the majority in Garner, again concluding that the loyalty oath required of public employees did not constitute a bill of attainder; nor was it an ex post facto law, since it involved a type of activity that had been previously proscribed for public employees. Black and Douglas, this time joined by Felix Frankfurter and Harold H. Burton, again dissented, holding that the law did indeed constitute a bill of attainder. Again, there was no discussion of First Amendment rights of speech or assembly in either case. In 1952 the Court again upheld a state loyalty requirement. Unlike in previous instances, however, the case addressed First Amendment concerns of free speech and assembly. A teacher had been fired under New

In a 1952 Court decision, Justice Sherman Minton supported loyalty oaths, arguing that individuals could choose between public employment and organization membership. (Collection of the Supreme Court of the United States)

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York State’s Feinberg Law, which stated that membership in any organization that advocated overthrow of the government was grounds for dismissal of anyone employed by the public. A list of such organizations was kept by the New York Board of Regents. The Supreme Court decided, 6-3, in Adler v. Board of Education, City of New York, that it was the duty of the state to screen its employees in order to ensure that they maintained the integrity of public office. In the majority opinion, Justice Sherman Minton also held that freedom of speech and assembly were not violated because it was the prerogative of the individual to choose between public employment and organization membership. Two of the dissenters, Black and Douglas, disagreed vigorously, arguing that the law amounted to little more than guilt by association, thereby violating the First Amendment. Decisions Striking Down Loyalty Oaths. In 1952 the Court for the first time struck down a loyalty oath. In Wieman v. Epdegraff, the Court considered an Oklahoma law that required all public officials to take a loyalty oath and that also stated that anyone involved either knowingly or unknowingly in a subversive organization would be dismissed or denied employment. Justice Clark wrote that association alone could not be used as grounds for dismissal; rather, such association had to be coupled with a complicity in an organization’s beliefs and goals. By the mid-1960’s, the Court began to look at loyalty oaths less favorably. In United States v. Brown (1965), it ruled the provision of the Labor Management Relations Act upheld in Douds to be unconstitutional. In 1959 Congress had eliminated the affidavit requirement and replaced it with a provision forbidding Communist Party members from holding union offices. The law was challenged by Communist Party member Archie Brown, who had been denied a seat on the executive board of a local branch of the International Longshoremen’s and Warehousemen’s Union. The Court, in an opinion by Chief Justice Earl Warren, ruled in Brown’s favor. Stating that while Congress does have the authority under the Constitution’s commerce clause to regulate the activities of unions and to weed out dangerous members of the labor movement, Congress must do so in a more general way. According to Warren, the revised law did not meet that requirement, thus violating the Constitutional prohibition of bills of attainder. In 1966 another loyalty-oath statute was struck down. In Elfbrandt v. Russell, an Arizona law requiring state employees to take an oath that they

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had no affiliation with the Communist Party or any other organization with intent to overthrow the government was ruled unconstitutional. In contrast to the law struck down in Wieman, the Arizona law stated that only those who were knowingly involved in such an organization could be prosecuted; however, such individuals could still be punished even if they did not agree with the organization’s subversive beliefs. In his opinion for the Court, Justice Douglas concluded that the oath was in violation of the First Amendment’s right of association. The Adler decision was the next to be reversed. In Keyishian v. Board of Regents of the University of the State of New York (1967), Justice William J. Brennan, Jr., declared the New York law that had been upheld in Adler unconstitutionally vague and overbroad, an issue that had not been considered in the earlier case. Brennan reasoned that it would prove impossible for a teacher, for example, always to know if all statements made about abstract doctrines could be considered either treasonable or seditious. John B. Peoples

MIRANDA RIGHTS Description: A requirement that the police inform suspects of their right against self-incrimination and their right to counsel during custodial interrogation. Relevant amendments: Fifth, Sixth Significance: A 1966 Supreme Court ruling created the Miranda rights. In a number of cases after its initial ruling, the Court clarified and refined its decision. The Miranda rights were created by the Supreme Court’s 5-4 decision in Miranda v. Arizona (1966). Miranda, a suspect in a kidnaping and rape case, confessed after being interrogated for two hours. The confession was admitted in trial, and Miranda was convicted. The Court overturned his conviction, ruling that the confession was inadmissible because the police failed to inform Miranda of his constitutional right to avoid selfincrimination and to obtain counsel before questioning him during a custodial investigation. The Court established guidelines, known as the Miranda rights, for informing suspects of their Fifth Amendment rights.

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Miranda rights / 247

The Miranda ruling has been continually reexamined since its inclusion in the U.S. justice system. It left a number of unanswered questions, including how to determine whether the accused was in fact in custody (and therefore needed to be read his or her rights), whether the suspect’s statements were spontaneous or the product of an investigation (and needed to be preceded by the reading of rights), and whether the individual effectively waived his or her rights. Subsequent cases helped answer these questions and define when the practice of reading suspects their rights can be suspended, which is usually if the questioning is being conducted in certain contexts and if larger issues—notably public safety— are concerned. A Question of Time and Place. In Orozco v. Texas (1969), the Court upheld a lower court’s ruling that four police officers should have read the Miranda rights to a suspect before questioning began in the suspect’s bedroom at four o’clock in the morning. However, in Beckwith v. United States (1976), the Court held that statements received by Internal Revenue Service agents during a noncoercive and noncustodial interview of a taxpayer under a criminal tax investigation conducted in a private residence did not require a reading of the Miranda rights, provided that the taxpayer was informed that he was free to leave the interview at any time. In its 1966 ruling, the Court stated that the reading of the rights is necessary only if the suspect is in custody or deprived of freedom in a significant way. In the case of Oregon v. Mathiason (1977), the suspect entered the police station after an officer told him that he would “like to discuss something with him.” It was made clear to the suspect that he was not under arrest. During his visit to the police station, the suspect confessed, and his confession was ruled admissible, despite the suspect not having been read his Miranda rights. The Court, in North Carolina v. Butler (1979), stated that “the trial court must look at all the circumstances to determine if a valid waiver has been made. Although an express waiver is easier to establish, it is not a requirement.” Still many questions remained unanswered, and further interpretations of Miranda followed. In Smith v. Illinois (1984), the Court declared that suspects taken into custody could invoke their Miranda rights very early in the process, even during the interrogator’s reading of their rights, effectively ending their questioning before it starts. In Berkemer v. McCarty (1984), the Court determined that the Miranda rights must be read any time “in-custody” interrogation regarding a felony, mis-

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demeanor, or minor offense takes place. However, it stated that routine questioning during traffic stops did not place enough pressure on detained people to necessitate officers’ warning them of their constitutional rights. Some Exceptions. In New York v. Quarles (1984), the Court ruled six to three that there is a “public safety” exception to the requirement that Miranda rights be read. In Quarles, police officers arrested a man they believed had just committed a rape. They asked the man where he had discarded a gun. The arrest took place in a supermarket, and the suspect was thought to have concealed the gun somewhere inside the supermarket. The gun was found and used as evidence. In such circumstances, the Court declared, “The need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment’s privilege against self-incrimination.” Quarles was a significant ruling, eroding Miranda’s influence. Subsequent cases challenged the Court’s interpretation of Miranda. In Oregon v. Elstead (1985), police officers received a voluntary admission of guilt from a suspect who had not yet been informed of his constitutional rights. The suspect made a second confession after he had been read his Miranda rights and had signed a waiver. Regarding the second confession, the Court ruled that “the self-incrimination clause of the Fifth Amendment does not require it to be suppressed solely because of the earlier voluntary but unwarned admission.” Furthermore, in Pennsylvania v. Muniz (1990), the Court decided that the routine questioning and videotaping of drivers suspected of driving under the influence was permissible even if the Miranda rights had not been recited. In addition, the Court held that reciting the Miranda rights is not required when the suspect gives a voluntary statement and is unaware that he or she is speaking to a law enforcement officer. In Illinois v. Perkins (1990), an undercover government agent was placed in a cell with Perkins, who was incarcerated on charges unrelated to the subject of the agent’s investigation. Perkins made statements that implicated him in the crime that the agent sought to solve, but he later claimed that the statements should have been inadmissable because he was not read his Miranda rights. However, even though Perkins was unaware that his cell mate was a government agent, his statements—which led to his arrest— were deemed admissible.

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Further Reading Carmen, Rolando Videl. Criminal Procedure. West Publishing, 1998. Weinreb, Lloyd L. Leading Constitutional Cases on Criminal Justice. Foundation Press, 1996. Dean Van Bibber

MISCEGENATION LAWS Description: Laws that prohibited interracial marriages and/or attached criminal penalties to sexual relations and cohabitation between whites and nonwhites Relevant amendments: Fifth, Fourteenth Significance: State miscegenation laws were examples of explicit racial discrimination in U.S. statutory law; they criminalized and penalized the unions of persons of differing racial heritages and denied legal legitimacy to mixed-race children born to such interracial couples Thirty-eight of the states at one time had miscegenation laws in force; seven of those thirty-eight repealed their laws before 1900. All southern states (not including the District of Columbia) had miscegenation statutes. Many western states (including Arizona, California, Montana, Nevada, Oregon, Utah, and Wyoming), in addition to forbidding intermarriage between blacks and whites, also specifically prohibited unions between whites and Native Americans or whites and Asian Americans. Penalties upon conviction varied from a maximum imprisonment of more than two years in most of the South and some other states (ten years in Florida, Indiana, Maryland, Mississippi, and North Carolina) to sentences ranging between a few months and two years in other states. Enforcement of the laws was random and irregular. The key case in ending miscegenation laws was Loving v. Virginia (1967). At the time that the U.S. Supreme Court heard the Loving case, sixteen states still had miscegenation laws in force. Virginia’s laws dealing with racial intermarriage were among the nation’s oldest. They stemmed from statutes formulated in the colonial period (1691) and had been strengthened by more stringent miscegenation legislation passed in the mid-1920’s in which whiteness was very narrowly defined. The codes that became law in 1924 were aimed primarily at discriminating against peo-

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ple of mixed African American and white heritage and/ or of American Indian background. In the Loving case, Richard Perry Loving, who was white, had married Mildred Delores Jester, who was African American, in Washington, D.C., in June, 1958. The Lovings made their home between Fredericksburg and Richmond in Caroline County, Virginia. They were issued warrants of arrest in July, 1958, and in January, 1959, they were convicted before the Caroline County court of violating Virginia’s antimiscegenation statute. Their minimum sentences (of one year imprisonment each) were suspended Antimiscegenation tract published during the on agreement that they would early 1860’s. (Library of Congress) leave the state. They moved to Washington, D.C., until 1963, when they returned to their farm in Virginia and worked with attorneys Bernard Cohen and Philip Hirschkop of the American Civil Liberties Union (ACLU), who placed their case under appeal. The miscegenation law and the Lovings’ convictions were upheld by the Virginia Supreme Court of Appeals in March, 1966, but in June, 1967, the U.S. Supreme Court overruled the appellate finding. The Supreme Court ruled that use of race as a basis for prohibiting marriage rights was unconstitutional under the Fourteenth Amendment’s equal protection and due process provisions. The ruling nullified all remaining laws forbidding interracial marriage. Previous to the unanimous 1967 ruling, the U.S. Supreme Court had taken a conservative approach to this civil rights issue. It had repeatedly avoided reviewing lower court convictions based on state antimiscegenation laws (Jackson v. Alabama, 1954; Naim v. Naim, 1955; McLaughlin v. Florida, 1964).

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Natural law / 251

NATURAL LAW Description: A “higher law” that, according to some political philosophers, applies to all human beings everywhere, is discoverable by reason alone, and is a standard by which to evaluate the laws made by human beings. Relevant amendment: Ninth Significance: Considerable debate continues regarding whether a “higher law” exists and whether the Supreme Court should rely on it in interpreting the U.S. Constitution. Natural law is best understood in contrast to positive law and to divine law. Positive law is that made by human beings; it may differ widely from one society to the next. Divine law is that set down in religious teachings; it often strongly influences the laws made by human beings and is said to be knowable only through revelation. According to philosophers, natural law, unlike divine law, is knowable through the use of reason alone, via the human ability to reflect on the nature of the world and on other people. Because nature is universal, natural law is universal. It therefore stands as a body of “higher law” in relation to the laws made by human beings. According to the doctrine of natural law, positive law is just or morally right to the extent that it reflects the natural law. Locke and Hobbes. Although the idea of natural law was first elaborated by the ancient Greeks and Romans and given its fullest premodern expression in the philosophy of the medieval philosopher Saint Thomas Aquinas, the concept of natural law that most affected U.S. jurisprudence derives primarily from the political philosophy of John Locke. Together with other Enlightenment

British philosopher John Locke. (Library of Congress)

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philosophers such as Thomas Hobbes, Samuel von Pufendorf, and Hugo Grotius, Locke transformed the classical and medieval understandings of natural law. This transformation was made possible on the basis of a fundamentally new conception of nature and its relationship to the human world of politics. Ancient and medieval political philosophy shared the view that human beings are by nature political animals. Modern political philosophy, beginning with Niccolò Machiavelli and Hobbes, broke with this view, arguing that human beings are not naturally political. According to Hobbes, for example, life in the state of nature is “solitary, poor, nasty, brutish, and short.” In the state of nature, no sovereign exists; each person must compete against all others. Competition, scarcity, the desire for glory, and fear for one’s life make existence in the natural state terrifying. Although people are free in the state of nature to do what they desire, they cannot possibly enjoy this unlimited freedom. They have rights—natural rights—in the state of nature, but they cannot enjoy them. Therefore, they consent to form a “social compact”; they give up their unlimited freedom to be ruled in civil society so that they might enjoy a prosperous peace and comfortable self-preservation. People’s natural desire to preserve themselves is thus fulfilled in the most rational manner possible by following what Locke termed the “first and fundamental natural law.” This law commands the preservation of the society and everyone in it. Even the sovereign power that makes human laws is governed by this natural law. Natural Law and U.S. Law. The concept of natural law finds expression in the opening sentence of the Declaration of Independence (1776), which justifies the American Revolution in terms of an appeal to “the laws of nature and of nature’s God.” Following the philosophy of Locke, the laws of nature are transformed into natural rights: All human beings are endowed with the inalienable rights to life, liberty, property, and the pursuit of happiness, and all are equal insofar as they possess these inalienable rights. The purpose of government is to protect people’s rights, and all legitimate government is based on the consent of the governed. The idea of a body of “higher law,” whether it takes the form of natural laws or natural rights, has been powerfully influential in U.S. jurisprudence, particularly in the context of interpreting the vague due process and equal protection clauses of the Fourteenth Amendment. In a number of famous cases, particularly Calder v. Bull (1798) and Adamson v. Cali-

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fornia (1947), the Supreme Court debated whether there is any “higher law” or are any “principles of natural justice” that should determine how the Constitution is to be interpreted. The issue was also hotly debated in the 1991 Senate hearings to confirm Court nominee Clarence Thomas. The issue of the existence of a “higher law” raises the question of how much latitude the Court has to read substantive moral values into the Constitution. Critics of the idea of a “higher law” interpretation of the Constitution fear that such a doctrine would allow justices to read their own moral values into the Constitution and would make the judiciary too powerful in its ability to override the will of the people as expressed by their national and state governments. Further Reading Arkes, Hadley. Beyond the Constitution. Princeton, N.J.: Princeton University Press, 1990. Berns, Walter. “Judicial Review and the Rights and Laws of Nature.” In The Supreme Court Review 1982, edited by Phillip Kurland, Gerhard Casper, and Dennis Hutchinson. Chicago: University of Chicago Press, 1983. Corwin, Edward S. The “Higher Law” Background of American Constitutional Law. Ithaca, N.Y.: Cornell University Press, 1955. Gerber, Scott. To Secure These Rights: The Declaration of Independence and Constitutional Interpretation. New York: New York University Press, 1995. Grey, Thomas. “Do We Have an Unwritten Constitution?” Stanford Law Review 27 (1975): 703. Locke, John. Essays on the Law of Nature. Oxford: Clarendon Press, 1954. Patrick Malcolmson

NEWSROOM SEARCHES Description: Inspection of a news organization’s offices by law enforcement officers to find evidence of crimes believed to be in the possession of the news agency. Relevant amendments: First, Fourth Significance: The Supreme Court did not recognize that news organizations were protected from searches under the First Amendment freedoms of speech and press. However, federal and state legislatures sub-

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sequently enacted statutes giving news organizations such enhanced protections. In a series of cases in the 1970’s, the press asserted that a fundamental aspect of the freedoms of speech and press protected by the First Amendment was the right to gather news without unreasonable restraint from the government. The press argued that the right to publish information was meaningless without some recognition of a right to gather information. One of the issues pursued by the press was enhanced protection from newsroom searches by law enforcement officials seeking to discover evidence of crimes committed by someone other than the news organization or its employees. The press argued that if law enforcement agents were allowed to search news organizations’ files for evidence of wrongdoing collected in the course of reporting, the press’s efforts at newsgathering would be hampered. In particular, potential confidential sources would be less willing to confide in journalists because newsroom searches might uncover their names, and the press would engage in selfcensorship to conceal its possession of information that might potentially interest law enforcement. Additionally, internal editorial deliberations would be inhibited by the prospect that a search would disclose the details of those deliberations, and reporters would be deterred from preserving information for future use for fear that it would be seized by the police. Lastly, the news organization’s operations would be disrupted during such searches. In Zurcher v. The Stanford Daily (1978), the Supreme Court held that the Constitution did not prohibit searches of newsrooms and that the standard Fourth Amendment rules, including the warrant requirement, applied to newsroom searches. When the materials sought in a search were protected by the First Amendment, the Court said, the Fourth Amendment requirements limiting law enforcement officials must be applied with “scrupulous exactitude.” After Zurcher, Congress and several state legislatures enacted statutes providing news organizations with greater protections against searches. The Privacy Protection Act of 1980 bars searches of notes, drafts, or similar material prepared by journalists. Other material, including, for example, documents or other items given to a journalist, are subject to seizure in limited circumstances, such as when necessary to prevent serious physical injury or help a party obtain documents after the news organization

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has disobeyed a subpoena. Some state laws offer news organizations greater protection than the federal statute provides. Further Reading Dienes, C. Thomas, Lee Levine, and Robert C. Lind. Newsgathering and the Law. Charlottesville, Va.: Michie Law, 1997. Teeter, Dwight L., Jr., and Don R. Le Duc. Law of Mass Communications. Westbury: The Foundation Press, 1992. Bernard W. Bell

NUREMBERG FILES Description: In 1999, Planned Parenthood won a large civil judgment against an antiabortion organization because of its provocative listings of specific names and addresses of abortion providers over the Internet, but a federal appeals court overruled the judgment as a violation of the freedom of expression protected by First Amendment. Relevant amendment: First Significance: The controversial ruling of the appellate court, Planned Parenthood v. American Coalition of Life Activists (2001), held that the First Amendment protected a right to encourage violence against specific individuals unless the message was both intended and likely to produce imminent lawless action. In the early 1990’s, an organization of antiabortion activists called the American Coalition of Life Advocates (ACLA) published the names and addresses of doctors and staff providing abortion services. The lists encouraged a few fanatics within the group’s audience to use violence against particular individuals. In 1997, the ACLA began sponsoring sites on the Worldwide Web, including the “Nuremberg Files,” which invoked the name of the German city where Nazi criminals had been tried for crimes against humanity after World War II. The sites, which were designed by Neil Horsley, did not explicitly advocate harm to the 225 listed providers, but they included lurid illustrations of dead fetuses and suggested that concerned citizens might have to resort to extra-legal means to stop the “baby butchers.” Although Horsley denied that the sites were intended to be “hit lists,” he declared approvingly that providers should

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know that pro-life activists were ready to “blow their brains out.” When listed providers were killed, the Web site of the Nuremberg Files lined out their names, and if when providers were wounded, their names were grayed out. During the 1990’s, at least seven murders and seventeen attempted murders of providers occurred, as well as at least five bombings and thirty cases of arson at abortion clinics. In 1995, before the ACLA site was established, Planned Parenthood and other abortion providers brought a civil suit against the ACLA under a federal statute, the Freedom of Access to Clinic Entrances Act. In 1999, a jury trial took place in Portland, Oregon, and the plaintiffs won a judgment of $109 million. Because of the judgment, the Nuremberg Files and similar Web sites were temporarily removed from the Internet. The ACLA appealed the case to the Ninth Circuit Court of Appeals, which hears federal appeals in nine western states. On March 28, 2001, a three-judge panel unanimously vacated the judgment as an unconstitutional restraint on the ACLA’s freedom of expression. Speaking for the panel, Circuit Judge Alex Kozinski explained: “Political speech may not be punished just because it makes it more likely that someone will be harmed at some unknown time in the future by an unrelated third party.” Kozinski noted that the Supreme Court in Brandenburg v. Ohio (1969) had ruled that communications with a political message were protected unless a speaker intended to incite imminent lawless behavior and the speech was likely to produce such an outcome. He also quoted extensively from National Association for the Advancement of Colored People v. Caliborn Hardware Co. (1982), in which the Supreme Court had overturned a judgment against NAACP leaders for threatening violence against African Americans not participating in an economic boycott. Even though violence against nonparticipants had occurred, it did not take place immediately after the provocative communications. Many observers—both liberal and conservative—were outraged by the three-judge panel’s ruling. Senator Charles Schumer and other authors of the relevant federal statute requested a review of the ruling by all eleven judges on the appeals court. On October 4, 2001, the court announced that the eleven judges would hear the case, but did not announce a date. Whatever the outcome of the review, it was entirely possible that the controversial case would have to be decided by the Supreme Court. Meanwhile, the Nuremberg Files, in modified form, reappeared on the Internet. Thomas T. Lewis

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OBSCENITY AND PORNOGRAPHY Description: An obscenity is an utterance or act that is morally or ethically offensive; pornography is the depiction of erotic behavior intended to arouse sexual excitement. Relevant amendment: First Significance: The Supreme Court held obscenity to be a category of speech not protected by the First Amendment. The justices had difficulty agreeing on a definition of obscenity, not forming a standard until a 1973 ruling. Obscenity is one of several categories of speech deemed unprotected by the First Amendment in Chaplinsky v. New Hampshire (1942). In this case, the Supreme Court argued that obscenity and lewdness are analogous to libel (knowingly false speech that injures a person’s reputation) and fighting words (speech that may incite the individual to whom the speech is addressed to attack the speaker). The Court reasoned that such speech is not essential to the rational exchange of ideas cherished by the First Amendment and is of little value to society. Any harm arising from suppression is outweighed by society’s interest in maintaining order and morality. Defining Obscenity. The Court did not directly address the question of obscenity’s constitutional status until Roth v. United States and Alberts v. California (1957). Writing for a 6-3 majority, Justice William Joseph Brennan, Jr., held that obscenity is unprotected by the First Amendment because it is “utterly without redeeming social importance.” Brennan stressed that “sex and obscenity are not synonymous” and distinguished between them by explaining that obscene material deals with sex in a manner appealing to “the prurient interest.” Brennan defined prurient as “having a tendency to excite lustful thoughts” or appealing to a “shameful and morbid interest in sex.” What became known as the RothAlberts test for obscenity was formulated by Brennan in this way: Material was obscene if “to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest.” In subsequent years, the Court found it difficult to define more precisely each element of the Roth-Alberts test. In Jacobellis v. Ohio (1964),

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Justice Potter Stewart questioned whether he could “intelligibly” define obscene material, though he averred that “I know it when I see it” and went on to find that the material involved was not obscene. Three years later, in Redrup v. New York (1967), the Court overturned an obscenity conviction in a per curiam decision (an opinion “by the court” that briefly expresses the decision but identifies no author), and for the next six years in more than thirty obscenity cases, the Court decided each per curiam, the individual justices applying their own understanding of the definition of obscenity. (Justice Hugo L. Black, true to his absolutist approach to First Amendment interpretation, refused to view any of the movies or publications involved in these cases.) These Warren Court decisions were criticized for failing to provide clear guidelines to law enforcement officials charged with applying federal, state, and local antiobscenity statutes. There was also concern that nonobscene sexually explicit speech might be stifled if speakers feared that speech they thought protected might later be found punishable. However, others found the Warren Court’s standards too permissive, and these decisions, among others, were issues in the 1968 presidential election. In Miller v. California and Paris Adult Theatre v. Slaton (1973), the Burger Court reaffirmed Roth’s finding that obscenity is not protected by the First Amendment and expounded the current test for obscenity. Writing for a 5-4 majority, Chief Justice Warren E. Burger held that three requirements must be met to find material obscene. First, the average person, applying contemporary community standards, must find the material appealing to his or her prurient interest. Second, the material must depict sexual conduct in a patently offensive way (“patently offensive representations . . . of ultimate sexual acts” and “patently offensive representations . . . of masturbation, excretory functions, and lewd exhibition of the genitals”). Third, material is obscene if, taken as a whole—not simply focusing on isolated passages or pictures in, for example, a book or magazine—it “lacks serious literary, artistic, political, or scientific value.” In short, obscenity is “hard core” pornography. In Paris Adult Theatre v. Slaton, decided the same day as Miller, Justice Brennan, who authored the majority opinion in Roth, questioned whether this new approach would bring stability to the law of obscenity and suggested that fundamental First Amendment values were jeopardized. He argued that government’s interest in regulating sexually explicit materials was confined to distribution to minors or unwilling adults

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and that regulation of the distribution of such materials to consenting adults was inconsistent with the First Amendment. Obscenity opponents praised the Court for achieving a majority opinion defining obscenity and rejecting an earlier approach—used by the Court in the 1966 Fanny Hill case (A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General of Massachusetts)—that a work is obscene if it is “utterly without redeeming social value.” This minimal social value test placed a heavy burden on prosecutors, in essence requiring them to prove a negative. Under Miller, prosecutors merely have to show that a work lacks “serious” literary, artistic, political, or scientific value. In New York v. Ferber (1982), the Court created an important exception to the principle that nonobscene sexually explicit material is entitled to First Amendment protection. The Ferber case involved a New York State law prohibiting the knowing production, exhibition, or distribution of any material depicting a “sexual performance” by a child under sixteen. Ferber was convicted for selling two films showing young boys masturbating. The Court upheld the conviction, even though this material did not meet the Miller test for obscenity. The Court reasoned that the state had a “compelling interest” in protecting the physiological, emotional, and mental health of children, citing the close relationship between child pornography and child abuse. In Osborne v. Ohio (1990), the Court held that the government may regulate private possession of child pornography. The Court reasoned that an earlier case, Stanley v. Georgia (1969), was not applicable here. In Stanley, the Court overturned a conviction for possession of obscenity. Justice Thurgood Marshall’s opinion for the Court stressed the freedom of individuals to read or watch what they choose in the privacy of their own home. (Stanley has never been overruled but neither has it been extended. In United States v. Reidel [1971], for example, the justices rejected the argument that a right to possess obscene materials entails a right to receive them despite a governmental ban on shipment of such materials.) In Osborne, over a dissent by Justice Brennan in which he argued that the controlling precedent was Stanley, the Court reasoned that the privacy interest was outweighed by the state’s need to protect children by attacking the “market for the exploitative use of children.” Sexually Oriented Nonobscene Speech. Some types of sexual speech, while not meeting the definition of obscenity, are treated by the Court as low value speech. The government has more room to regulate such

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speech than it would if it were targeting a political speech or a newspaper editorial. The Court has used the metaphor of a ladder. Obscenity, libel, or fighting words are at the bottom of the ladder, while a speech at a political rally or a newspaper editorial are at the top. Sexually oriented nonobscene speech is somewhere in between and, in the eyes of some justices, closer to the bottom. The Court has never given a detailed definition of this category but it is clear that sexually explicit nonobscene material is included. One example involves movie theaters specializing in “adult” entertainment— material involving “specified sexual activities” or “specified anatomical areas.” In Young v. American Mini Theatres (1976), the Court said cities could limit how many adult theaters could be on any block and exclude them from residential neighborhoods. The Court stressed that attempts to place complete bans on such establishments would raise First Amendment problems. Subsequently in City of Renton v. Playtime Theaters (1986), the Court approved a zoning ordinance that banned adult theaters located within one thousand feet of any residential zone, church, park, or school. The practical effect of Renton’s law was to exclude such establishments from 95 percent of the land in the city. The remaining 5 percent was unsuitable for such establishments, but the Court, relying on Young, upheld the ordinance. Also near the bottom of the ladder is nude dancing. In Barnes v. Glen Theatre (1991), the Court held that the government may completely ban nude dancing. At issue in Barnes was an Indiana statute prohibiting public nudity. The Court split five to four, and there was no majority opinion. The plurality opinion by Chief Justice William H. Rehnquist described nude dancing as “within the outer perimeters of the First Amendment, though . . . only marginally so.” Rehnquist argued that the ban on nude dancing was needed to protect “societal order and morality.” In the chief justice’s view, Indiana was not proscribing erotic dancing but rather targeting public nudity. Justice Byron R. White’s dissenting opinion argued that nudity is an expressive component of the dance rather than “merely incidental ‘conduct.’” Whatever the exact definition of sexually oriented nonobscene speech, the Court has indicated that nudity per se is not enough to place the communication near the bottom of the ladder. In Erznoznik v. Jacksonville (1975), the Court overturned a Jacksonville, Florida, ordinance prohibiting a drive-in movie theater from showing films including nude scenes if the screen was visible from a public street or any other public place. The

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Court stressed that nudity alone is not obscene and not enough to curtail First Amendment protections. Profane and Indecent Language. Profane and indecent language, the familiar Anglo-Saxon four-letter word being the prototypical example, does not meet the Miller definition of obscenity, and the Court has found such language protected by the First Amendment. The notion that the government may not punish speech simply because some find it offensive, a bedrock principle of First Amendment interpretation, found classic expression in Cohen v. California (1971). In Cohen, the Court overturned the conviction of an anti-Vietnam War protester charged with disturbing the peace by wearing in the corridor of a courthouse a jacket with the words “Fuck the Draft” emblazoned on its back. Justice John Marshall Harlan II’s majority opinion rejected the notion that the state can prohibit offensive language. Harlan was concerned that, under the guise of prohibiting particular words, the government might seek to ban the expression of unpopular views. Additionally, Harlan endorsed Cohen’s argument that words are often used as much for their emotive as their cognitive impact. Cohen could not have conveyed the intensity of his feeling if the jacket said “I Don’t Like the Draft.” In Sable Communications v. Federal Communications Commission (1989), the Court reiterated that government may prohibit obscene but not indecent speech. However, the Court has also recognized situations in which the government can ban profane or indecent language. One such situation is broadcasting. In Federal Communications Commission v. Pacifica Foundation (1978), the Court allowed the Federal Communications Commission (FCC) to punish indecent language broadcast over an FM radio station. The station aired a portion of a monologue on “seven dirty words” by comedian George Carlin. Chief Justice Burger’s opinion emphasized that broadcast media are unique in their pervasiveness and in their ability to intrude into the home. Burger also expressed concern about the accessibility of such broadcasts to children. Applying Pacifica to another pervasive and intrusive medium—cable television—in 1996, the Court considered several provisions of a federal law regulating the broadcast of “patently offensive” sexually oriented material on cable. The Court held in Denver Area Educational Consortium v. Federal Communications Commission, that cable operators could refuse to carry sexually explicit broadcasting. The Court again stressed the need to protect children. At the same time, the Court found unconstitutional a

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requirement that sexually oriented programs be confined to a single channel that could not be viewed unless the cable subscriber requested access in writing. Although concerned about the availability of such material to children, the Court believed that the law could have chosen less restrictive alternatives, such as facilitating parental blockage of such channels. In Reno v. American Civil Liberties Union (1996), the Court overturned a 1996 federal law, the Communications Decency Act, which attempted to protect minors by criminalizing “indecency” on the Internet. Justice John Paul Stevens’s 7-2 majority opinion found that the act placed too heavy a burden on protected speech and threatened “to torch a large segment of the Internet community.” The Court said the Internet is analogous to the print rather than broadcast medium and therefore entitled to full First Amendment protections. The Court voiced concern that the law would threaten legitimate discussion of sexual topics posted online by the plaintiffs, for example, groups such as Stop Prisoner Rape or Critical Path AIDS Project. Another exception to the Court’s protection of profane and indecent language arises in the context of schools. The Court upheld the right of public school officials to punish a student for indecent speech. In Bethel School District No. 403 v. Fraser (1986), the Court found that Fraser’s school assembly speech, containing no profanity but numerous sexual innuendoes, was “wholly inconsistent with the ‘fundamental value’ of public school education.” Bethel exemplifies the Court’s tendency to defer to school authorities and to emphasize an orderly educational process over student free speech rights. Further Reading For a comprehensive overview of the Court’s approach to civil rights and liberties issues, consult Henry J. Abraham and Barbara A. Perry’s Freedom and the Court (7th ed., New York: Oxford University Press, 1998). Chapter 5, “The Precious Freedom of Expression,” is an excellent introduction to the Court’s First Amendment jurisprudence and includes a thorough and balanced discussion of pornography and obscenity. In general, the literature on freedom of expression is voluminous. Readers might start with two classics by a towering figure, Alexander Meiklejohn: Free Speech and Its Relation to Self-Government (Port Washington, N.Y.: Kennikat Press, 1972) and Political Freedom: The Constitutional Powers of the People (New York: Oxford University Press, 1965). More recent studies that are also

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valuable include Lee Bollinger’s The Tolerant Society (New York: Oxford University Press, 1986), Rodney A. Smolla’s Free Speech in an Open Society (New York: Alfred A. Knopf, 1992), Nat Hentoff’s Free Speech for Me—But Not for Thee (New York: HarperCollins, 1993), and Kent Greenwalt’s Fighting Words (Princeton, N.J.: Princeton University Press, 1995). A variety of works deal specifically with obscenity or pornography. For a conservative approach, see Harry M. Clor’s Obscenity and Public Morality (Chicago: University of Chicago Press, 1969) or Walter Berns’s The First Amendment and the Future of American Democracy (New York: Basic Books, 1976). For a radical feminist approach to pornography, see two works by Catharine MacKinnon: Only Words (Cambridge, Mass.: Harvard University Press, 1993) and Feminism Unmodified (Cambridge, Mass.: Harvard University Press, 1987). For a response to MacKinnon and Clor, see Nadine Strossen’s Defending Pornography (New York: Scribner, 1995). A balanced overview of these and other positions can be found in a collection of essays edited by Robert M. Baird and Stuart E. Rosenbaum, Pornography: Private Right or Public Menace? (Buffalo, N.Y.: Prometheus Books, 1991). Philip A. Dynia

PETITION, RIGHT OF Description: Right of the people to ask their government to redress their grievances. Relevant amendment: First Significance: Freedom to petition, one of the First Amendment rights, is relatively well accepted; however, the Supreme Court placed some minor limitations on the way or place in which the petitioning occurred. The First Amendment to the Constitution states: “Congress shall make no law abridging the freedom of the people to petition the government for a redress of grievances.” As is true of most of the rights enumerated in the Bill of Rights, this right has its origins in English common law. Section 61 of the Magna Carta (1215), for example, describes how barons may exercise their right to petition the Crown for redress of grievances. Under the English Bill of Rights (1689), the fifth item on a list of rights of the people is a right to petition the king. The right is also listed in the Declarations

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and Resolves of the Continental Congress, and in the Declaration of Independence one of the reasons given for rebellion against the king is that “our repeated petitions have been answered only by repeated injury.” Of the rights listed in the First Amendment (the other are separation of church and state, freedom of religion, freedom of speech, freedom of the press, and right of assembly), freedom to petition is the least controversial and the most taken for granted, perhaps because the exercise of the right to petition is less likely to affect the exercise of other rights. The people have readily and consistently employed their right to petition. Some petitions are formally audited and widely disseminated, with highly sophisticated methods used to gather signatures. In various states, petitions can be used to place initiatives on the ballot in statewide elections. If the initiative receives a sufficient number of votes in the election, it becomes law. Petitions can also be simple, from handwritten personal letters to a small group of homeowners asking a city council member to address a traffic issue on a particular street. A telephone call can also be considered a petition. The Supreme Court has a less onerous task in defining what a petition is than what obscenity or unprotected speech is, given that a petition is clearly a plea that a government or official take some specified action. Cases. Often the right to petition has been considered together with other rights, such as that of assembly. In Thornhill v. Alabama (1940), the Court held that orderly union picketing was a protected form of assembly and petition, and thus the state law constraining it was unconstitutional. On the other hand, in United States v. Harriss (1954), the Court upheld a federal law requiring certain lobbyist to register themselves. In Edwards v. South Carolina (1963), the Court overturned the convictions of 180 African American students who had marched peaceably in protest of racial discrimination. The police claimed that because a hostile crowd was waiting for the students at the end of their march, it was necessary to arrest them to prevent a riot. The Court held that even a disorderly crowd, let alone the fear of one, does not trump the right of petition. In United States v. Grace (1983), the Court overturned a federal law against picketing and handing out leaflets on the steps of the Supreme Court’s building. However, the Court has shown less tolerance toward the right to petition when it touches on military issues. In Brown v. Gilnes (1980), it held that base commanders could prevent military personnel from sending a petition to Congress, and in Walters v. National Association

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of Radiation Survivors (1985), the Court upheld a $10 limit on the amount a veteran could pay an attorney to pursue claims with the Veterans Administration, arguing that the limit was not a constraint on the right to petition. In Burson v. Freeman (1992), a Tennessee law forbidding campaignrelated speech within one hundred feet of the entrance to a polling place was overturned. The Court noted that the law was a “content-based restriction on political speech in a public forum.” In McIntyre v. Ohio Elections Commission (1995) the Court invalidated an Ohio law that prohibited the distribution of campaign literature that did not contain the name and address of the person or campaign official issuing the literature, and in Talley v. California (1960) the Court invalidated an ordinance prohibiting all anonymous leafleting. More recently, in Buckley v. American Constitutional Law Foundation (1999), the Court overturned a Colorado statute that imposed a requirement that petition circulators wear identification badges and organizations initiating petition drives meet strict reporting requirements. Controversy. People, corporations, and interest groups have the right to pay lobbyists, public relations firms, and advertisers to advocate their causes before the government and in the media. This fact has led to complaints that equal access for all effectively results in greater access for the wealthy. The Court generally has taken a dim view of limitations, even those motivated by “fairness,” upon the right to petition. The right has met with some controversy regarding prisoners. Generally, conservatives have cited frivolous complaints by prisoners and have argued that prisoners should not have unlimited access to the ears of government officials. Liberals, in turn, have cited cases seeking redress for the gross mistreatment of prisoners to argue that they should not lose their right to petition the government. This controversy is often subsumed in the larger issue of the rights of prisoners to pursue more formal legal claims. Further Reading BeVier, Lillian R. Campaign Finance “Reform” Proposals: A First Amendment Analysis. Washington, D.C.: Cato Institute, 1997. Farber, Daniel A. The First Amendment. New York: Foundation Press, 1998. Murphy, Paul L. The Shaping of the First Amendment, 1791 to the Present. New York: Oxford University Press, 1992.

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Shiffrin, Steven H., and Jesse H. Choper. The First Amendment: Cases, Comments, Questions. St. Paul, Minn.: West Publishing, 1996. Eric Howard

PREFERRED FREEDOMS DOCTRINE Description: An attempted ranking of constitutional rights so that some, notably those of the First Amendment, are deemed fundamental to a free society and consequently are given enhanced judicial protection. Relevant amendment: First Significance: Through the 1940’s the preferred freedoms doctrine was used to explain the Supreme Court’s continued invalidation of laws restricting First Amendment freedoms of speech, press, and religion, even as it ceased to interfere with laws that regulated economic relations. In the 1930’s the Supreme Court abandoned the doctrine of freedom of contract that had been used since Lochner v. New York (1905) to invalidate economic regulations by states and the federal government. At the same time, the Court seemed to increase its vigilance when freedoms of speech, press, or religion were at issue. In Palko v. Connecticut (1937), the Court distinguished fundamental rights, those that represented “the very essence of a scheme of ordered liberty,” and so would be protected against state abridgment by the due process clause of the Fourteenth Amendment. In United States v. Carolene Products Co. (1938), the Court proposed enhanced judicial scrutiny of laws restricting the political process or laws aimed at “discrete and insular minorities.” This provided the Court with a rationale for greater activism in First Amendment and equal protection clause cases. However, in Kovacs v. Cooper (1949), Justice Felix Frankfurter criticized any such ranking of rights as not guided by the text of the Constitution and therefore reflecting only the political values of the justices. The preferred freedoms doctrine has continued to influence equal protection and fundamental rights theories. An unstated ranking of freedoms seems to animate the selection of cases through the writ of certiorari. John C. Hughes

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INNOCENCE, PRESUMPTION OF Description: The idea that a person accused of a crime does not need to prove innocence; rather, the prosecution must prove the person guilty Relevant amendment: Fifth Significance: The presumption that an accused person is innocent until proven guilty is an essential element of the American criminal justice system The presumption of innocence traces its roots to Roman law. Its role in the early common law of England is obscure, but it was clearly established by 1802. In England and the United States it is viewed as the source of the “proof beyond a reasonable doubt” requirement in criminal trials. The presumption of innocence is not explicitly provided for in the Constitution. It is inferred from the due process clauses of the Fifth and Fourteenth Amendments (as held in the Supreme Court cases Coffin v. United States, 1895, and Taylor v. Kentucky, 1978, respectively). The presumption of innocence describes the right of a defendant to offer no proof of innocence in a criminal case. It also describes the duty of the prosecution to offer evidence that the defendant committed the crime charged and to convince the jury beyond a reasonable doubt that, in the light of the offered evidence, the defendant is guilty of the crime charged. The fact that a jury is instructed to presume that a defendant is innocent until proven guilty assists the jury in understanding the limited circumstances under which it should vote to convict a defendant. It also cautions a jury to not convict based on the fact the defendant was arrested and is being tried or on mere suspicion that the defendant committed the crime charged. In this sense the presumption of innocence aids the jury in understanding the requirement that the prosecution prove its case beyond a reasonable doubt, a concept which can be difficult for a jury to understand. A defendant charged with a federal crime is entitled to receive a presumption of innocence jury instruction if he or she requests it, as established in Coffin v. United States. This is not the rule in state crime trials. Despite the long history of its importance and function, the Supreme Court has held that a presumption of innocence instruction need not be given to every jury in state criminal trials. The Supreme Court has interpreted the due process clause of the Fourteenth Amendment as requiring it only

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when the failure to give such an instruction in the case would deprive a defendant of a fair trial in the light of the totality of the circumstances. Many states, however, have held that the presumption of innocence charge to a jury is required by their state constitutions or statutes. If a defendant is presumed innocent, then what is the justification for holding a criminal defendant in jail pending trial? Holding the defendant in jail prior to trial certainly seems to be imposing punishment before the defendant has been found guilty, which would appear to be logically inconsistent with the ideal of the presumption of innocence. In Bell v. Wolfish (1979), the Supreme Court explained why the presumption of innocence does not apply to pretrial proceedings. The Court held that the role of the presumption of innocence is limited to the guiltdetermining process at the defendant’s trial. Before trial, the defendant’s right to freedom is defined by the Fourth, Fifth, and Eighth Amendments. The government may need to hold a defendant in jail prior to trial to ensure that he or she appears for the trial or to protect the community from possible criminal conduct by the defendant prior to trial. In many, but not all, circumstances, the Eighth Amendment provides that a defendant has a right to bail before trial.

PREVENTIVE DETENTION Description: Confinement of a criminal defendant before final conviction and sentencing Relevant amendment: Fifth Significance: Federal and state statutes permit preconviction detention upon finding that the accused is likely to flee or is a threat to the safety of the community Under the English system at the time of the American Revolution, some criminal defendants were released on bail while those accused of the most serious felony offenses, especially crimes subject to capital punishment, were detained pending trial. Although some legal writers suggest that this pretrial detention was to protect the community from the dangerous propensities of the accused, case law indicates that detention was to make sure the defendant was present at trial. Current American practice, which evolved from English law, allows defendants to remain free on

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bail or on personal recognizance except in capital offenses with abundant evidence of guilt, when the defendant is likely to flee, or when the accused poses a danger to the community or to witnesses. Preventive detention statutes call into question three important principles of American law: the presumption of innocence, the right to due process, and the prohibition against excessive bail. Indispensable to the American criminal justice system is the proposition that one who is accused of a crime is presumed innocent until proven guilty. Opponents of preventive detention contend that an accused person has no less of a right to freedom than any other member of society and that the only proper basis for preconviction confinement is the risk of flight. Nevertheless, other grounds for detention are recognized by federal and state law. The Fifth Amendment prohibits the deprivation “of life, liberty, or property, without due process of law.” However, due process is satisfied by a hearing before a judicial officer in which the person to be detained has the right to be present and to contest the evidence favoring detention. The mandate of the Eighth Amendment, that “[e]xcessive bail shall not be required,” is also frequently cited by those who condemn preventive detention. They argue that this implies a right to be released on bail in all cases, except perhaps capital cases for which bail was not available under English common law. The courts, however, have consistently held that this amendment only limits the discretion of judges to set high bail in cases for which Congress or a state legislative body has authorized that bail be granted. The right to bail is fundamental but not absolute. It is not a constitutional violation to provide bail in some cases and deny it in others. The requirement is only that courts must act reasonably and conform to the Constitution and statutes. The Bail Reform Act gives judicial officers the discretion to detain defendants in federal criminal cases upon finding that no condition or combination of conditions will reasonably assure the appearance of the accused to stand trial or protect the safety of others in the community. Preventive detention may be ordered for those accused of crimes of violence, of offenses which may be punishable by life imprisonment or death, or of certain drug-related offenses. It also may be ordered for defendants with two or more previous felony convictions, for those who pose a serious risk of flight, and for those who the court finds will obstruct justice or intimidate witnesses or jurors. State courts also have the power to deny bail in order to assure the presence of the accused at trial and to protect the community unless such

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powers are limited by the Constitution or by statute. Typical statutes permit criminal defendants to be released on bail except in capital cases where the facts are evident or the presumption of guilt is great. Some statutes also allow preventive detention for felony offenses involving acts of violence in which guilt is obvious or when the defendant would be likely to harm another if released.

PRIOR RESTRAINT Description: Government restraint of objectionable material before its publication, distribution, performance, or broadcast Relevant amendment: First Significance: Prior restraint has long been the essence of censorship because it has been one of the most effective tools used by governments to prevent the spread of offending ideas Government leaders and other authorities have given prior restraint of free expression a bad name, but it is easy to understand why prior restraint is important to them. If authorities wait until after offensive ideas are expressed to punish offenders, the damage has already been done. Even extreme retroactive penalties, including death, may not deter some critics from voicing their opposition. In the Soviet Union, in which prior restraint and severe penalties for expressing ideas were commonplace, there were always holders of dissident views, such as Aleksandr Solzhenitsyn and Andrei Sakharov, willing to write or speak out, in spite of what the regime could do to them after their ideas came to light. In modern democracies, prior restraint has long been proscribed as one of the best ways to encourage free expression. As early as the mideighteenth century, the great British jurist William Blackstone wrote in his Commentaries (1765-1769) that “liberty of the press is indeed essential to the nature of a free state; but this consists of laying no previous restraints upon publications.” Blackstone’s Commentaries was one of the major sources of law for the American colonists and the early leaders of the United States. Abundant evidence demonstrates that the nation’s Founders shared a common understanding that freedom of the press meant at minimum no prior restraint. At the same time, prior restraint has been recognized as a necessary part of those forms of expression in

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British jurist William Blackstone, whose Commentaries have helped shape both British and American legal traditions. (Courtesy of Art & Visual Materials, Special Collections Department, Harvard Law School)

which assembly is involved. The U.S. Bill of Rights guarantees only that Congress shall not abridge the right “peaceably to assemble,” implying a right to restrain assemblies in advance. Prior Restraint in the United States. Although the absence of prior restraint is the starting point, free expression has come to encompass a great deal more. Shortly after passage of the Bill of Rights in 1791, laws restricting press freedom became a major issue with the passage of the Sedition Act of 1798. The ruling Federalist Party feared losing the 1800 presidential election to its Democratic-Republican opponents and sought to restrain opposition newspapers by making it a criminal offense to write false, malicious stories about the government or its officials, including the president. The Federalists justified the law by arguing that it did not impose a prior restraint. When adopted, the Sedition Act was used to convict several Democratic-Republican publishers who attacked its reputation for fairness. The ensuing political outcry was so great that the Federalists lost the presidency and never regained it. Thomas Jefferson, after winning, pardoned those convicted. The experience kept the national government from attempting similar acts for more than a hundred years,

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and added the recognition that restraints after the fact can also limit free expression by what later came to be known as the chilling effect. Definition of the First Amendment limits was left to the twentieth century U.S. Supreme Court. The first example of an attempted prior restraint on the press came in Near v. Minnesota (1931). A man named Near published a newspaper in Minneapolis, Minnesota, that denounced local “Jewish” government officials for graft and corruption. Minnesota authorities sought to use state statutes to stop Near from publishing his antiSemitic newsletter, since no federal statute existed. After the case reached the U.S. Supreme Court, the Court initially decided that the First Amendment’s free press clause applied to the states as well as the federal government by using the Fourteenth Amendment’s due process clause to rule that all persons were entitled to equal protection of the laws under their state governments. The Court then ruled that despite the despicable character of Near’s views, no state could exercise a prior restraint on a newspaper. A later case of attempted prior restraint on the press involved a set of purloined documents known as the Pentagon Papers that raised serious national security issues in 1971. Nevertheless, the Supreme Court declined to allow a prior restraint to stop their publication in The New York Times. After this case, it became difficult to see what circumstance would justify a prior restraint on the press in the United States. Prior Restraint and Freedom of Assembly. The First Amendment divides the free expression of ideas into three categories: press, speech, and peaceable assembly. Neither speech nor press is to be restrained as a free expression of ideas, but the amendment’s use of the word “peaceably” in connection with the right to assembly means that assemblies can be—and routinely are—subject to prior restraint. Even in cases of assembly, however, prior restraints are only allowed for reasons of time, place, or manner and cannot be used to block expression of ideas. Freedom of press and freedom of speech differ from freedom of assembly because of their more passive character, although the U.S. Supreme Court has not always consistently and officially said so. Press, in particular, is regarded as a less dangerous medium for the expression of ideas since reading is a more passive activity than speaking to an audience. While speakers have often been known—intentionally or unintentionally—to incite audiences to riot, it is difficult to imagine people reading a newspaper to riot spontaneously.

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Because speech is frequently expressed before assemblages, it falls partially under the First Amendment’s requirement that unless an assembly is peaceable, it may be restrained. This point rests on a distinction between ideas and actions. Pure ideas as expressed in the press or in speeches to peaceable assemblies are fully protected, but the requirement that an assembly must be peaceable may lead to restraints on speech, even if there are no prior restraints on the press. The essence of freedom of the press is no prior restraint of any protected material before its distribution, but it clearly implies that restraints may be applied afterward. By the late twentieth century, concern about chilling effect had led the proponents of free expression to oppose the use of libel laws as postrestraints. The cost of litigation meant that many who would otherwise speak out would be restrained. The Supreme Court recognized this by limiting the grounds by which newspapers could be held accountable in libel cases, thereby limiting the extent to which postrestraints apply to newspapers. However, the essence of freedom of expression still rests on no prior restraint or no censorship. Richard L. Wilson

PRIVACY, RIGHT OF Description: The right of individuals to be free from unwarranted publicity or uninvited intrusions into their personal affairs Relevant amendments: Fifth, Ninth, Fourteenth Significance: Although the U.S. Constitution does not use the word “privacy,” the Bill of Rights secures specific kinds of privacy interests, and the Supreme Court has interpreted the Constitution to protect a general right to privacy which includes personal autonomy and intimate relationships Many of the provisions of the U.S. Constitution protect values which people commonly include under the multifaceted label “privacy.” The First Amendment means that people should be allowed privacy in their beliefs and expressions of beliefs. The Third Amendment permits individuals to refuse to take soldiers into their homes in peacetime. The Fourth Amendment protects against unreasonable searches of persons, homes,

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and property. The Ninth Amendment recognizes that rights exist that are not enumerated in the Constitution. Both the Fifth and Fourteenth Amendments appear to give some substantive rights to liberty and property, concepts at the core of an individual’s private interests. Publicity and Invasions of Privacy. The modern notion of a legal, expansive right to general privacy really began in 1890, when lawyers Louis Brandeis and Charles Warren published a famous article in the Harvard Law Review entitled “The Right to Privacy,” arguing that “the right to be let alone” was “the most comprehensive of rights and the right most valued by civilized man.” Brandeis and Warren advocated the use of tort law to deter invasions of privacy by the press and others. Beginning with New York in 1903, most states gradually allowed civil suits for the unauthorized use of one’s name, the public disclosure of private affairs, and publicity presenting one in a false light. Any legal restraint on publicity eventually comes in conflict with the First Amendment guarantee of a free press. For this reason, in Time, Inc. v. Hill (1967), the Supreme Court applied its standards for libel of public persons to unwanted publicity about private individuals if the publicity relates to a “newsworthy” story. Thus, a private individual described in a story of public interest is able to collect damages only if the writer or publisher resorts to “deliberate falsity or a reckless disregard for the truth.” The Court extended this test in Cox Broadcasting Corporation v. Cohn (1975), in which it overturned a civil award arising under a Georgia privacy statute that made it illegal to publicize the name of a rape victim. The Court declared it unconstitutional to punish the news media for providing “truthful information available in the public record.” If the state wished to protect the privacy of victims, it could delete the relevant information from public court documents. In a subsequent case, Florida Star v. B.J.F. (1989), the Court again emphasized press freedom over privacy when it overturned a civil award against a newspaper for illegally reporting the full name of a rape victim, the name coming from police records. A minority of three justices argued that more weight should be given to the privacy of innocent victims. Privacy and the Fourth Amendment. Because of the British colonial experience, the framers of the Fourth Amendment wanted to deny the government the power to conduct general searches of buildings with writs of assistance. In the famous Massachusetts trial of 1761, Paxton’s Case, James

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George Orwell’s 1949 novel Nineteen Eighty-Four depicted a grim future world in which civil liberties do not exist and privacy is unknown. (Museum of Modern Art, Film Stills Archive)

Otis had argued against the use of general writs, declaring that an individual in his house should be “as secure as a prince in his castle.” The Supreme Court only gradually tried to prevent the police from violating the Fourth Amendment. In one of the first important cases, Boyd v. United States (1886), Justice Joseph Bradley insisted that the courts had the duty to uphold the spirit of the amendment, writing that it applied “to all invasions on the part of the government and its employees of the sanctity of a man’s home and the privacies of life.” In Weeks v. United States (1914), the Court began a rigorous assault on unreasonable searches by mandating the “exclusionary rule,” which disallows any use of illegally obtained evidence in criminal trials. In his famous dissent in Olmstead v. United States (1928), Justice Brandeis interpreted the Fourth Amendment broadly to prohibit “every unjustifiable intrusion on the privacy of the individual.” Most of Brandeis’s ideas were accepted in Katz v. United States (1967), a case in which the Court interpreted the amendment to require a valid search warrant whenever the police enter into a zone in which a person has a “reasonable expectation of privacy.” The Court has reaffirmed the Katz principle on numerous occasions. In Terry v. Ohio (1968), for example, the Court allowed

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the police to stop and frisk based on reasonable suspicion but insisted that whenever individuals harbor a reasonable expectation of privacy they are “entitled to be free from unreasonable governmental intrusion.” One controversial question is whether mandatory drug testing is contrary to Fourth Amendment rights, especially when there is no basis for individualized suspicion. When the U.S. Customs Service began to require drug tests of employees entering sensitive positions in the service, the Court in National Treasury Employees Union v. Van Raab (1989) voted 5 to 4 that the government’s compelling interest in law enforcement outweighs the “privacy interests” of the employees. The Court, however, insisted that only the special demands of the positions justified this “diminished expectation of privacy.” Privacy of Association. The Constitution does not explicitly mention a freedom of association, but First Amendment rights for free expression and peaceful assembly logically imply the privilege to meet with others to establish organizations for the advancement of ideas and opinions. The Supreme Court recognized this expansive view in National Association for the Advancement of Colored People v. Alabama (1958), with Justice John Harlan speaking of constitutional protection for “privacy in group association.” In general, private associations may decide to include or exclude people for any reason, even prejudices based on race or gender. In Rotary International v. Rotary Club of Duarte (1987), however, the Court upheld a California statute that required large business clubs to include women. Insisting that the club was not a small, intimate organization and that its mission would not be changed by admitting women, the Court was careful to acknowledge that “the freedom to enter into and to carry on certain intimate or private relationships is a fundamental element of liberty protected by the Bill of Rights.” Substantive Due Process and Privacy. The period from 1897 to 1937 is often called the “Lochner age.” During these years the Supreme Court insisted that the due process clauses of the Fifth and Fourteenth Amendments protected substantive rights to liberty and property. This approach meant that any restraint on these substantive rights would be judged unconstitutional unless justified by a legitimate objective of law enforcement. The conservative Court emphasized the right of persons to make private contracts without governmental interference; this “liberty of con-

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tract” almost invariably supported laissez-faire economic policies, as in Lochner v. New York (1905). During the Lochner age, however, there were at least two substantive due process decisions recognizing liberties which would later be incorporated into a generic right to privacy. In the first case, Meyer v. Nebraska (1923), the Court struck down a state law making it illegal to teach nonEnglish languages in all schools. The rationale was a broad conception of liberty which included family relationships, education, and the “orderly pursuits of happiness by free men.” Second, the Court in Pierce v. Society of Sisters (1925) overturned a state law which prohibited parents from sending their children to private schools. The ruling affirmed “the liberty of parents and guardians to direct the upbringing and education of children under their control.” Although the Court in 1937 stopped striking down economic regulations based on the application of substantive due process, it never overturned the Meyer and Pierce precedents, and years later these cases would often be quoted to defend the libertarian notion that government may not intrude into a zone of private family life and personal autonomy. Privacy and Reproductive Freedom. In gradually developing an explicit right of general privacy, the Supreme Court dealt with issues of sexuality and reproduction. In the watershed case Skinner v. Oklahoma (1942), the Court unanimously overturned Oklahoma’s Habitual Criminal Sterilization Act, which allowed the sterilization of “habitual criminals.” Justice William O. Douglas, a partisan of Brandeis’s views on privacy, utilized the argument that the individual’s right to procreate was “a basic liberty.” Later, in Loving v. Virginia (1967), the Court declared that a state miscegenation law was unconstitutional because it violated the right of individuals to choose their own marriage partners. The most influential case that specifically proclaimed reproductive privacy rights was Griswold v. Connecticut (1965). Overturning a state statute that prohibited the use of contraceptives, Justice Douglas argued for the majority that there were penumbras (partial shadows) to the Bill of Rights that created “zones of privacy” not specifically mentioned in the Constitution and that one such zone was the right of a married couple to practice family planning. Marriage and procreation, he wrote, were associated with “a right to privacy older than the Bill of Rights—older than our political parties, older than our school system.” While six other justices agreed with the outcome in Griswold, at least one justice wanted to

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find the right of privacy in the Ninth Amendment, and others wanted to find it in a substantive due process reading of the due process clause. A few years later, the Court in Eisenstadt v. Baird (1972) expanded the right of privacy somewhat by overturning a Massachusetts law which prohibited the distribution of contraceptives to unmarried people. The Eisenstadt decision recognized that the right of privacy inhered in the individual rather than the marital relationship, and it explicitly declared that the right included freedom from governmental intrusion into one’s personal choice about whether to give birth to a child. Privacy and Abortion Rights. The Court’s decisions proclaiming the right to use birth control were in the background to Roe v. Wade (1973), the controversial case in which the Court ruled that laws outlawing abortion violated a woman’s right to privacy. Justice Harry Blackmun, writing for the majority, found the right of privacy primarily in the “concept of personal liberty” guaranteed by the Fourteenth Amendment. He declared that this right “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Whatever the rights of a fetus, he argued, they are secondary to the woman’s right of privacy, at least until the fetus becomes viable. During the subsequent two decades, the Court approved of many restrictions on a woman’s right to have an abortion, but it continued to guarantee the basic right. In these later cases, the Court increasingly emphasized that the underlying right to privacy was an aspect of liberty based on a substantive due process reading of the Fourteenth Amendment. Thus the term “liberty interest” tended to replace the term “right to privacy.” Privacy and Personal Autonomy. One problem with building privacy rights on the concept of substantive due process is that subjective judgments inevitably determine which rights are protected and which are not. Thus, in Kelly v. Johnson (1976), the Court upheld a regulation which limited the length of policemen’s hair, but in Moore v. East Cleveland (1977) the Court overturned a city ordinance limiting the occupancy of any dwelling to a narrow definition of a family, prohibiting a grandmother from living with her grandchildren. In Moore, Justice Lewis Powell referred to the string of privacy cases and concluded that “freedom of personal choice in matters of marriage and family life is one of the liberties protected by the due process clause.” The most controversial aspect of

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Powell’s opinion was his suggestion that protections of substantive due process should be limited to institutions and practices “deeply rooted in this Nation’s history and tradition.” In the controversial case Bowers v. Hardwick (1986), the Court considered the nation’s history and tradition when it concluded that the right of privacy gave no protection for the right to engage in homosexual practices, even in a private bedroom. Writing for the majority, Justice Byron White accepted that the due process clause protected many substantive liberties, but he insisted that the Court should show “great resistance to expand the substantive reach of those Clauses.” In Cruzan v. Director, Missouri Department of Health (1990), on the other hand, the Court found enough history and tradition to conclude that competent adults possess the constitutional right to refuse unwanted medical intervention, even when death is the result of such a refusal. Informational Privacy. In contrast to the Court’s recognition of claims for personal autonomy in regard to one’s body and relationships in the traditional family, it has found little occasion to expand protection for “informational privacy.” In its major decision dealing with the issue, Whalen v. Roe (1977), the Court upheld a state law which required the keeping of computer files on all patients obtaining dangerous but legal drugs. While acknowledging an individual’s interest in maintaining autonomy over some personal information, the Court considered that the law did not “pose a sufficiently grievous threat” to establish a constitutional violation. As Whalen illustrates, courts have generally allowed legislative bodies to decide on appropriate means to safeguard interests in informational privacy. Congress has recognized the public’s concern for the issue, as seen in the Privacy Act of 1947, which allows individuals to have access to personal information in files of federal agencies, except for law enforcement and national security files. Thomas T. Lewis

PRIVILEGES AND IMMUNITIES Description: Special rights and exemptions provided by law, which are protected from state government abridgment by Article IV of the U.S. Constitution and the Fourteenth Amendment.

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Relevant amendments: First through Eighth Significance: The Court made only limited use of these clauses; its reluctance to protect rights with them is a reflection more of the Court’s political concerns than of the provisions’ substance. The Supreme Court has given the privileges and immunities clauses varying interpretations according to what it considered the nation’s exigent political and economic needs. Opinions addressing these provisions illustrate the political nature of the Court’s decision making. Both clauses arise from intergovernmental concerns within the federal system and require that state governments treat citizens with basic equality; litigation about them has also examined the federal courts’ role in guaranteeing “fundamental rights.” Article IV, section 2, of the U.S. Constitution provides that “the Citizens of each State shall be entitled to all Privileges and Immunities of Citizens of the other states.” In The Federalist (1788) No. 80, Alexander Hamilton maintained that this clause was “the basis of the Union.” Along with the full faith and credit clause and fugitive felons and fugitive slaves provisions, this clause was designed to ensure interstate comity. Its obvious purpose was to protect citizens of one state from being treated as aliens while in another state. Evidently, the clause did not literally mean what it said. A Georgian has the right to conduct trade in Maryland but not to vote in Maryland’s elections. The earliest standard to disBushrod Washington—a nephew of President tinguish between these acGeorge Washington—was the first justice to tivities was propounded by articulate the principle of the fundamental rights of citizens traveling or doing business in other states. Justice Bushrod Washing(Collection of the Supreme Court ton. Sitting on circuit court, of the United States) he held that this clause pro-

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tected out-of-state citizens’ fundamental rights, those that “belong, of right, to citizens of all free governments” in Corfield v. Coryell (1823). Substantial Reason Test. The Court never fully embraced Washington’s interpretation. It rarely used the clause to protect fundamental rights, except to ensure some measure of equal treatment by state governments for citizens of other states. Its concern was primarily with the political fallout of interstate relations rather than the rights of individual citizens. The nineteenth century Court limited its use of the clause to protecting the professional, property, and business rights of out-of-state citizens and to providing them access to state courts. The Court’s major twentieth century development of the Article IV clause held that lawful state discrimination against citizens of other states must exhibit a “substantial reason for discrimination” beyond their out-of-state citizenship in Toomer v. Witsell (1948). The most notable use of the Toomer standard was Doe v. Bolton (1973), in which the court struck down a statute that allowed only state residents to obtain abortions in Georgia. After it adopted the Toomer “substantial reason” test, the Court returned to the fundamental rights standard in one significant case. It upheld a Montana law that required a higher fee for the hunting licenses of nonresidents than for those for residents. It ruled that equal access to hunting licenses for nonresidents was “not basic to the maintenance of well-being of the Union” in Baldwin v. Fish and Game Commission (1978). In all cases, the Court applied the Article IV clause only to unequal treatment of out-of-state citizens, and in most of them, it also based its holdings on the commerce clause. The Fourteenth Amendment. The Fourteenth Amendment includes the injunction that “No state shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States.” This clause’s primary author, John Bingham, contended that the privileges and immunities referred to “are chiefly defined in the first eight amendments to the Constitution,” which he maintained, “were never limitations upon the power of the States, until made so by the Fourteenth Amendment.” The Slaughterhouse Cases (1873) presented the first significant litigation concerning the meaning of the Fourteenth Amendment. In that decision, the Court rendered the privileges or immunities clause ineffective as the basis for federal protection of individual rights. The appellants claimed

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that their right to labor was violated by a Louisiana law that required New Orleans butchers to use a central slaughterhouse. Writing for a 5-4 majority, Justice Samuel F. Miller ruled that the privileges or immunities clause did not protect a right to labor. He maintained that the clause protected only the privileges or immunities granted by the United States and that regulation of the right to labor fell within the authority of the states. The next day, the Court applied Slaughterhouse’s narrow interpretation to hold that the clause did not prevent Illinois from denying women licenses to practice law in Bradwell v. Illinois (1873), thus confirming the view of the clause held by the Court ever since. The political and cultural basis of the decision was indicated by Justice Joseph P. Bradley’s concurrence, “Women are to fulfill the noble and benign offices of wife and mother.” This, he maintained, “is the law of the Creator.” A century later, when the Court turned to the Fourteenth Amendment to protect women from discriminatory state laws, it relied on the equal protection clause. In both Slaughterhouse and Bradwell, the Court responded to political considerations. It recognized that all citizens’ fundamental rights should be secured against infringement. It was also committed to the federal system and determined that the states should retain primary responsibility for governing and protecting the rights of the people. To rule otherwise, the Slaughterhouse majority argued, would make “this court a perpetual censor upon all legislation of the states.” Justice Stephen J. Field decried Slaughterhouse for reducing the privileges and immunities clause to “a vain and idle enactment, which accomplished nothing.” His dissent contained the seeds of the doctrines of freedom of contract and substantive due process that dominated the Court’s economic rulings for half a century. Because Slaughterhouse emasculated the privileges or immunities clause, when the Court espoused these doctrines, it based them on the Fourteenth Amendment’s due process clause. To this day, when the Court chooses to protect individual rights, it turns to the due process, equal protection, or commerce clauses rather than the weakened privileges or immunities clause. In 1999 the Supreme Court resurrected the privileges and immunities clause in Saenz v. Roe. In that case it struck down California’s durational residency requirement for welfare benefits. Justice John Paul Stevens declared that newly arrived residents of a state must be provided the same privileges and immunities as the state’s citizens. The Saenz holding raised the possibility that the Court in the future might rely on the privileges and immunities clause, rather than substantive due process.

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Further Reading Olsen, Trisha.“The Natural Law Foundation of the Privileges or Immunities Clause of the Fourteenth Amendment.” Arkansas Law Review 48 (1995): 347-438. Rosen, Jeffery. “Translating the Privileges or Immunities Clause.” George Washington Law Review 66 (1998): 1241-1268. Scarborough, Jane L. “What If the Butcher in the Slaughterhouse Cases Had Won?: An Exercise in ‘Counterfactual’ Doctrine.” Maine Law Review 50 (1998): 211-224. Simson, Gary J. “Discrimination Against Nonresidents and the Privileges and Immunities Clause of Article IV.” University of Pennsylvania Law Review 128 (1979): 379-401. Chuck Smith

PROBABLE CAUSE Description: The likelihood that a search or seizure warrant is justified; the Fourth Amendment states that no search or arrest warrants “shall issue, but upon probable cause” Relevant amendment: Fourth Significance: The probable cause requirement, an important concept in search and seizure law, protects individuals against government abuse of its power to seize evidence and arrest people suspected of a crime In Great Britain a series of statutes beginning in the fourteenth century authorized government officials and, in some cases, private individuals to search for and seize certain items. The power to search and seize was not effectively limited, and many abuses occurred in terms of indiscriminate searches and seizures. For example, the Licensing Act of 1662 authorized almost unlimited searches and seizures by the king’s secretaries of state in their efforts to seek out any seditious or unlicensed publication of books and pamphlets. General warrants and writs of assistance, some of the most obnoxious forms of unlimited search and seizure power, were used extensively by England to enforce its mercantile taxation policies and to investigate illegal smuggling activities in the American colonies. The Fourth Amendment to the U.S. Constitution was designed to prevent the federal government from using the much-hated general war-

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rants and writs of assistance. The requirement of probable cause ensured that warrants for searches and seizures would not be issued based on only vague claims that they were necessary for the protection of the state or its citizens. The Fourth Amendment’s probable cause requirement was never intended to prevent or frustrate law enforcement. The Supreme Court has consistently emphasized that the determination of probable cause is pragmatic inquiry, the outcome of which is dependent on the specific facts in each case. In each case, probable cause should be determined using a practical, nontechnical approach in examining the facts. Whether probable cause exists in a case involving a warrant turns on the question of whether, based on the totality of the circumstances disclosed in the warrant application, a magistrate using common sense could conclude that there was a fair probability that evidence sought would be found in the place to be searched or that the person sought committed the alleged crime. According to the U.S. Supreme Court in Illinois v. Gates (1983), when a warrant is used, an appellate court should give great deference to the magistrate’s determination of probable cause so long as it has a substantial basis in facts disclosed in the affidavits supporting the request for a warrant. In some cases probable cause is also the standard used by judges in determining whether action taken by the police without a warrant was an unreasonable search or seizure. In a warrantless circumstance, the determination of probable cause turns on the question of whether trustworthy facts and circumstances within a police officer’s knowledge at the time he or she acted would lead a person of reasonable caution to conclude that a crime was being or had been committed or that the evidence sought may be found in the place searched (Draper v. United States, 1959). In Terry v. Ohio (1968), the Supreme Court authorized brief warrantless detention and, in some circumstances, a limited search of individuals based on reasonable suspicion. Subsequently, the Supreme Court has reemphasized that in most cases when a finding of probable cause is required, the facts must establish the presence of more than a reasonable suspicion.

PROPERTY RIGHTS Description: The recognition from the perspective of natural, constitutional, statutory, or common law of the extent to which individuals,

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business entities, or organizations may acquire, keep, use, and dispose of tangible or intangible things free from interference by others. Relevant amendment: Fourth Significance: The Supreme Court’s various and changing pronouncements regarding the meaning and constitutional status of property rights, the result of conflicting theories, provoke great controversy. The Supreme Court’s involvement with property rights issues derives mainly from the Fifth Amendment, applicable to the federal government, and the Fourteenth Amendment, applicable to the states. Both amendments prohibit the deprivation of property without due process of law. Much controversy has attended the Court’s interpretation and application of the due process clause in the context of property rights. During the late nineteenth and early twentieth centuries, a concept of substantive due process evolved whereby the Court invalidated federal and state economic legislation on the basis of the due process clause. However, a reaction to what was called “economic due process” occurred during the middle and late 1930’s, when the Court reversed course and began to apply only a “rational basis” test to economic legislation. By the end of the twentieth century, the use of a substantive due process concept to protect property rights continued to be held in judicial disrepute. The protection of property rights under the procedural rather than the substantive component of the due process clause was less controversial. However, during and after the 1970’s the concept of property used in procedural due process discussions came to include positive legal rights created by regulatory legislation. Thus, the Court formulated procedures that must be followed when the government deprives a person of such modern legislative entitlements as welfare benefits and civil service employment. The Fifth Amendment also contains the takings clause, which forbids the taking of private property for public use without “just compensation.” The takings clause is applied to state and local government by way of the Fourteenth Amendment. During the final decades of the twentieth century, the Court’s increasing use of the takings clause to protect property rights evoked controversy both inside and outside the Court. The Court’s Early Understanding. The early justices on the Court shared the view of the Founders of the nation that government was instituted to protect the life, liberty, and property of each person. Thus, in Calder v.

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Bull (1798), Justice Samuel Chase observed that a law that took property from one person and gave it to another would be contrary to the great first principles of the social compact. However, the compromise over slavery embodied in the original Constitution resulted in slaves being recognized as property by the Court. In 1857 the Court went so far as to hold, in Scott v. Sandford, that a free African American whose ancestors had been slaves could not be a “citizen” within the meaning of the Constitution. The slavery question was resolved by the Civil War. The Thirteenth Amendment abolished slavery in 1865, and three years later, the Fourteenth Amendment granted citizenship to all persons born or naturalized in the United States and prohibited the states from abridging the privileges or immunities of such citizens and from denying to any person due process and equal protection of the laws. Divergence in Property Rights Theory. The adoption of the Fourteenth Amendment left open the question of the extent to which the Court would apply the due process clause of that amendment to protect private property rights from encroachment by state and local governments. In the Slaughterhouse Cases (1873), a 5-4 majority held that the Fourteenth

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Amendment due process clause did not prevent the state of Louisiana from granting a monopoly on slaughtering livestock to a particular private company. In Munn v. Illinois (1877), the Court held that the state of Illinois could control the prices charged by grain elevators in Chicago. Chief Justice Morrison R. Waite wrote for the majority that state governments may regulate property that becomes clothed with a public interest, and that property becomes clothed with a public interest when it is used in a manner that affects the public at large. In dissent, Justice Stephen J. Field articulated a classic statement on property rights and their enforcement under the Fourteenth Amendment. Field pointed out that under the principle adopted by the majority, state government could regulate virtually all businesses, thus depriving property owners of the important right of free use of their property. He thought the majority view subverted the rights of private property and necessarily resulted in all property being held at the mercy of state legislatures. The common law doctrine that government could regulate property affected with a public interest referred only to property that had been specifically dedicated by its owner to public uses or to property that was affected by special governmental privileges. The majority had, in Field’s opinion, twisted this doctrine into a license for unlimited governmental infringement on property rights. In the closing decades of the nineteenth century, Field’s views regarding the Fourteenth Amendment and property rights became the majority view of the Court. In several decisions, the Court held that state legislation affecting property rights violated the Fourteenth Amendment due process clause. This notion of substantive due process protection of property rights continued until the mid-1930’s. Many of these cases invoked the liberty component of the due process clause to protect freedom of contract. For example, in Allgeyer v. Louisiana (1897), the Court invoked a freedom of contract concept in the context of out-of-state insurance contracts, and in Lochner v. New York (1905), the Court used the same concept to invalidate state-imposed daily maximums placed on working hours. The New Issue of Zoning. An early exception to the substantive due process protection of property rights emerged in the context of zoning. At the beginning of the twentieth century, the question arose whether municipal zoning regulations were unconstitutional deprivations of property rights. The Court addressed this issue in Euclid v. Ambler Realty Co.

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(1926). In that case, a municipal zoning ordinance limited a portion of the property owner’s land to residential use. The property owner and its amicus curiae argued that the zoning ordinance violated the fundamental nature of property ownership, confiscated and destroyed a great part of the land’s value, constituted a cloud on the title of the land, and accordingly deprived the property owner of liberty and property without due process of law in derogation of the Fourteenth Amendment. The Court disagreed with the position of the property owner, holding instead that general zoning regulations satisfy the requirements of the Fourteenth Amendment due process clause unless they are clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare of the community. Although the precise holding of Euclid was limited to the context of injunctive relief, the practical effect of this decision was to make it almost impossible to challenge zoning regulations under a due process theory for many decades. Accordingly, when the resurgence of Court recognition of property rights in zoning cases finally came, it arrived under the rubric of the Fifth Amendment takings clause (as applied to states and their political subdivisions by the Fourteenth Amendment), not under a due process theory. The New Deal Cases. The stock market crash of 1929 and the ensuing Great Depression led to President Franklin D. Roosevelt’s New Deal policies of the middle and late 1930’s. To try to revive the economy, the New Deal proposed a vast new role for the federal government in the economy. Many state governments also commenced what were then considered to be radical interventions in economic matters. The Court’s initial reaction to the new governmental programs was to hold several of them unconstitutional under substantive due process concepts. President Roosevelt’s attempt to increase the number of justices sitting on the Court (in order to allow him to appoint justices favorably disposed toward New Deal legislation) led to a revolution in Court jurisprudence in economic matters. For example, in United States v. Carolene Products Co. (1938), the Court held that legislation affecting ordinary commercial transactions would henceforth enjoy the presumption that it rested on some rational basis within the knowledge and experience of the legislators. In contrast, the presumption of constitutionality was narrower when legislation appeared on its face to be within a specific prohibition of the Constitution, for example, specific prohibitions in the Bill of Rights. Through the remainder of the twentieth century, the Court was reluctant

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President Franklin D. Roosevelt. (White House Historical Society)

to invalidate economic legislation under the Fifth Amendment and Fourteenth Amendment due process clauses, and substantive protection of property rights was largely confined to the takings clause. Renewed Interest in Property Rights. After decades of quiescence, the constitutional protection of property rights began a long journey toward renewed recognition in the late twentieth century. In Lynch v. Household Finance Corp. (1972), Justice Potter Stewart authored a plurality opinion that expressed a rationale for constitutional recognition of property rights in the context of a jurisdictional issue. Although Justice Byron R. White, joined by Chief Justice Warren E. Burger and Justice Harry A. Blackmun, dissented on the basis of a jurisdictional issue not linked to the property rights question, the dissenters expressed agreement with the plurality’s statements regarding property rights. The plurality opinion observed that it is difficult to draw a line between personal liberties and property rights with any consistency or principled objectivity. Accordingly, the dichotomy between personal liberties and property rights is a false one. The right to enjoy property without unlawful deprivation is as much a “personal” right as is the right to speak or the right to travel. A fundamental interdependence exists between the personal right to liberty and the personal right in property. In articulating this position, the plurality opinion cited such classic statements of property rights as John Locke’s Of Civil Government (1690) and Sir William Blackstone’s Commentaries (1765-1769).

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Although Lynch appeared to presage the possible rehabilitation of substantive due process to protect property rights, no such reprise of economic due process occurred. Rather, the Court confined its renewed interest in property rights to the takings clause. The Takings Clause Cases. In Pennsylvania Coal Co. v. Mahon (1922), the Court held that the takings clause could be invoked in the context of governmental regulation. Writing for the Court, Justice Oliver Wendell Holmes made the well-known statement that although property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking. Holmes observed that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a circumventing the constitutional way of paying for the change. The Court has recognized a variety of property interests as being “private property” within the meaning of the takings clause, for example, contracts (Lynch v. United States, 1934), leaseholds (United States v. General Motors Corp., 1945), air space (United States v. Causby, 1946), an interpleader fund and the interest accruing thereon (Webb’s Fabulous Pharmacies v. Beckwith, 1980), trade secrets (Ruckelshaus v. Monsanto Co., 1984), fractional interests in land (Babbit v. Youpee, 1997), and interest earned on state-mandated attorney trust accounts (Phillips v. Washington Legal Fund, 1998). In Phillips, the Court restated its well-established principle that property is more than economic value, also consisting of the group of rights that an owner exercises over a thing, such as the right to possess, use, and dispose of it. During and after 1987 the Court used the takings clause to foster greater protection of property rights in land. In First English Evangelical Lutheran Church of Glendale v. County of Los Angeles (1987), the Court adopted the doctrine that a temporary governmental regulation prohibiting all development of land results in a temporary taking for which just compensation is due to the landowner for the period of the taking. In Nollan v. California Coastal Commission (1987), the Court held that a state requirement of a public easement as a prerequisite of a development permit violated the takings clause under the circumstances of that case. The Court held in Lucas v. South Carolina Coastal Council (1992) that a governmental deprivation of all economically beneficial or productive use of land is a taking of that land within the meaning of the Fifth Amendment. In Dolan v. City of Tigard (1994), the Court held that certain municipal exactions associated with building permits would be subject to a stricter

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test than the traditional rational basis test for due process evaluation of economic legislation. Writing for the Court, Chief Justice William H. Rehnquist reflected the increasing concern for property rights when he stated that the takings clause was as much a part of the Bill of Rights as the First or Fourth Amendments and should therefore not be relegated to the status of a poor relation. Legislative Entitlements as Property Rights. The Court has sometimes recognized legislative entitlements as property interests sufficient to trigger procedural due process. In Goldberg v. Kelly (1970), the Court observed that welfare entitlements were more in the nature of property than a gratuity and that such property interests created by governmental programs are entitled to certain procedural due process protections. Similarly, in Board of Regents v. Roth (1972) and Perry v. Sindermann (1972), the Court determined that a person’s interest in a governmental benefit is a property interest if there are rules or mutually explicit understandings that support the person’s claim of entitlement to the benefit. Where state entitlements are concerned, the property interests are created and their dimensions are defined by state law. If, for example, a state creates a tenure system for governmental employees whereby the employee may be discharged only for good cause, then federal procedural due process protections are implicated. Therefore, in Cleveland Board of Education v. Loudermill (1985), the Court held that Ohio’s statutory system of classified civil service employees triggered the procedural component of the Fourteenth Amendment due process clause and that such due process required Ohio to afford tenured employees pretermination proceedings before they could be discharged, even though Ohio law provided no such pretermination procedure. In Memphis Light, Gas and Water Division v. Craft (1978), the Court held that a customer of a utility service had a property interest in such service for procedural due process purposes where a state law provided that such utility service could not be terminated except for cause. Reticence About Economic Due Process. During the 1990’s the Court continued to apply only a rational basis test to property rights cases brought under the substantive component of the due process clauses. For example, in United States v. Carlton (1994), the Court applied the rational basis test to a retroactive amendment to the Internal Revenue Code that cost the relying taxpayer $631,000. The majority opinion,

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authored by Justice Blackmun, reiterated the Court’s long-standing disregard of the pre-New Deal precedents that required exacting review of economic legislation. In an opinion concurring in the judgment, Justice Antonin Scalia (joined by Justice Clarence Thomas) restated his position that the very concept of substantive due process is an oxymoron and that the due process clause should be applied only to procedural matters. In Eastern Enterprises v. Apfel (1998), the Court considered the imposition by Congress of retroactive and substantial financial liabilities under the Coal Industry Retiree Health Benefit Act of 1992 (Coal Act). A plurality opinion of four justices considered it a violation of the takings clause for Congress to impose financial liability on a company in which such liability was based on the company’s conduct far in the past and was unrelated to any commitment that the company made or to any injury it caused. However, five justices rejected a takings clause analysis, arguing that the term “private property” in that clause referred only to specific property, not general financial resources. Justice Anthony M. Kennedy, applying a substantive due process analysis to the retroactivity question, joined the four justices supporting a takings theory to invalidate the provision. The other four justices, applying a fundamental fairness test to the retroactivity issue, concluded that the provision did not offend substantive due process. Thus, the Court continued its decades-long refusal to invoke substantive due process to invalidate economic legislation. However, the Court showed increasing willingness to consider the protection of property rights under the Fifth Amendment takings clause. Further Reading James W. Ely, Jr.’s The Guardian of Every Other Right: A Constitutional History of Property Rights (2d ed., New York: Oxford University Press, 1998) contains an overview of the constitutional history of property rights. The Framers’ view of property rights is set forth in The Federalist (1788), especially in essay No. 10 by James Madison. However, Charles A. Beard claimed in An Economic Interpretation of the Constitution of the United States (New York: Free Press, 1913) that the Framers were motivated by their own personal economic interests. Beard’s view was challenged by Robert E. Brown in his Charles Beard and the Constitution: A Critical Analysis of “An Economic Interpretation of the Constitution” (New York: W. W. Norton, 1956) and Forrest McDonald in We the People: The Economic Origins of the Constitu-

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Public forum doctrine / 293

tion (Chicago: University of Chicago Press, 1958). Richard A. Epstein’s Takings: Private Property and the Power of Eminent Domain (Cambridge, Mass.: Harvard University Press, 1985) was influential in the growing movement to use the takings clause for protection of property rights. Epstein elaborated a more comprehensive position in Principles for a Free Society: Reconciling Individual Liberty with the Common Good (Reading, Mass.: Perseus Books, 1998). Bernard H. Siegan’s Property and Freedom: The Constitution, the Courts, and Land-Use Regulations (New Brunswick, N.J.: Transaction, 1997) discussed the Court’s takings decisions from a pro-property rights perspective. Cass R. Sunstein’s After the Rights Revolution: Reconceiving the Regulatory State (Cambridge, Mass.: Harvard University Press, 1990) attempted to set forth constitutional principles favorable to a regulatory state, and Bernard Schwartz directly opposed the resurgence of property rights protection in The New Right and the Constitution: Turning Back the Legal Clock (Boston: Northeastern University Press, 1990). Alan E. Johnson

PUBLIC FORUM DOCTRINE Description: Constitutional doctrine relating to attempts by government bodies to control speech activities on public property. Relevant amendment: First Significance: Though the Supreme Court initially held that government bodies have the same power to control the use of public properties as private owners, during the twentieth century the Court expanded the rights of citizens to engage in expressive activities in public venues. Government bodies in the United States own and manage a variety of property, including streets, parks, and public buildings. In their role as property owners, government bodies often seek to exercise control over the activities that occur on government property, including expressive activities. Early in the twentieth century, the Supreme Court interpreted the First Amendment’s free speech clause to permit government the same broad discretion to control activities on its property as enjoyed by most private property owners. Over the course of the twentieth century, however, the Court eventually crafted distinctions among types of government property that dictated the kinds of control government might exer-

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cise over speech-related activities on public property. The Court’s elaboration of these distinctions is commonly referred to as the public forum doctrine. Traditional Public Forums. The core of the public forum doctrine was the Court’s determination that some forms of government property were held by government in trust for its citizens for speech-related purposes. Public streets and parks, for example, have, according to the Court, “immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communications of thought between citizens, and discussing public questions.” The Court designated public properties traditionally held for speech-related properties as “public forums.” Within these public forums, the Court sharply limited government power to regulate speech-related activities. In particular, the public forum doctrine prevents the government from attempting to exclude speech from such forums out of hostility to the views expressed or the subject matters addressed in the speech. Government, however, is not without all power to regulate speech in public forums. It may regulate the timing, placement, or manner of speech in such forums. These kind of regulations—commonly referred to as time, place, and manner restrictions—allow government to control the volume of concerts in public parks, for example, or to schedule appropriate times for parades on public streets. In public forums, then, government may coordinate expressive activities, but it may not censor particular views or subjects. Although government may enforce reasonable time, place, and manner restrictions on speech in these forums, it may discriminate against speech with a particular content only if it demonstrates a compelling justification. This kind of demonstration is rare, but occasionally government will proffer a weighty enough justification, as, for example, in Frisby v. Schultz (1988), when the Court upheld a ban on focused picketing on the public streets in front of a particular resident, such as a picket by abortion protestors of the home of a doctor who performed abortions. Designated Public Forums and Nonpublic Forums. Eventually, the Court had to consider whether other types of public property were subject to the same rules as those it had applied to classic public forums such as public streets and parks. In Perry Education Association v. Perry Local Educators’ Association (1983), the Court described three categories of public prop-

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erty and the measure of protection to the accorded speech in each of these three types of property. In the first place, the Court reiterated the protection given to speech in “traditional” public forums such as streets or parks. In the second place, the Court identified some types of public property as “designated” public forums. These exist when government opens particular property for a wide range of expressive purposes. In these cases, government must abide by the same rules that apply to traditional public forums. In particular it may not attempt to prevent particular subjects or viewpoints from gaining access to the forum. Thus, in Widmar v. Vincent (1981), the Court held that a university could not prevent a Christian student group from meeting in university facilities that had been made generally available to other student groups for speechrelated activities. Finally, the Court ruled in Perry Education Association that certain types of public property might be reserved by government for particular purposes and not made available to the public for general expressive activities. Within these “nonpublic forums,” government may exercise considerable control over speech, even to the extent of choosing what subjects may be addressed in these forums. Government may not, however, attempt to suppress the expression of particular viewpoints. Furthermore, at a minimum, any regulations of speech in nonpublic forums must be reasonable. Within these broad parameters government may designate particular uses for its nonpublic forums, including particular expressive uses. Thus, for example, in United States Postal Service v. Greenburgh Civic Associations (1981), the Court held that mailboxes are nonpublic forums and that federal law may restrict access to mailboxes to postal material. Similarly, in Greer v. Spock (1976), the Court determined that military bases were not public forums and that demonstrations in this venue could be prohibited. Further Reading Hentoff, Nat. Free Speech for Me—But Not for Thee: How the American Left and Right Relentlessly Censor Each Other. New York: HarperCollins, 1993. Kalven, Harry. A Worthy Tradition: Freedom of Speech in America. New York: Harper & Row, 1988. O’Neil, Robert M. Free Speech in the College Community. Bloomington: Indiana University Press, 1997. Smolla, Rodney A. Free Speech in an Open Society. New York: Alfred A. Knopf, 1992.

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Tedford, Thomas L. Freedom of Speech in the United States. New York: Random House, 1985. Timothy L. Hall

PUBLIC USE DOCTRINE Description: Right of the general public to use property in a way that contributes to the general welfare. In eminent domain cases, this right is superior to any individual’s right. Specific definitions of public use are often a function of economic theory and political philosophy. Relevant amendment: Fifth Significance: This doctrine, rooted in the takings clause of the Fifth Amendment of the U.S. Constitution, allows public authorities to acquire or use land. Typically, the Supreme Court allows the legislative branch to determine whether the use serves a public purpose. The Supreme Court broadly interpreted the public use doctrine to mean that land seized under the takings clause of the Fifth Amendment of the U.S. Constitution must be used for the public interest or in some way serve a legitimate public purpose. The Court typically defers to the legislative branch in defining the extent to which a “public purpose” is achieved. For example, in Berman v. Parker (1954), a unanimous Court stated that the judiciary’s role in determining whether government’s power to take lands and convert them to public use was being exercised for a public purpose was “extremely narrow.” Moreover, in Hawaii Housing Authority v. Midkiff (1984), the Court sustained Hawaii’s Land Reform Act of 1967, which sought to break up large estates and give families the ability to buy property from the state. Writing for the Court, Justice Sandra Day O’Connor argued that when “the legislature’s purpose is legitimate and its means are not irrational, our cases make clear that empirical debates over the wisdom of takings [are] not to be carried out in federal courts.” In terms of patent law, public use signifies that an inventor has permitted his or her invention to be used by the general public either with or without compensation. The invention is thus said to be in public use. Patent law declares a patent to be invalid if the invention has been in public use for more than one year before patent application. P. J. Brendese III and Matthew Lindstrom

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Religion, establishment of / 297

RELEASED TIME Description: Practice of permitting public school students to attend classes in religious instruction offered by community volunteers during regular school hours. Relevant amendment: First Significance: The effort to inculcate religious values into public school students through released time was declared unconstitutional by the Supreme Court in 1948. It was the first time an activity was found to violate the establishment clause of the First Amendment. Under a 1943 state law, a Champaign, Illinois, school board undertook a program whereby local clergy came into public school buildings to offer religious instruction for one class period each week to those students whose parents consented to the exercise. For others, study hall was available. Justice Hugo L. Black, writing for the Supreme Court in Illinois ex rel. McCollum v. Board of Education (1948), ruled that the practice violated the establishment clause because tax-supported property was used for religious purposes and because the state’s compulsory attendance law assisted in a fundamental way the program of religious instruction. Wishing to avoid the same constitutional infirmity, New York State permitted its public school students to attend religious instruction classes off school grounds. Challenged in Zorach v. Clauson (1952), the practice was upheld. Justice William O. Douglas, writing for the Court, ruled that the change in locale constituted a sufficient separation of church and state. Adopting a more accommodating position than the Court had in McCollum, Douglas said, “We are a religious people whose institutions presuppose a Supreme Being.” Kenneth F. Mott

RELIGION, ESTABLISHMENT OF Description: An alliance or entanglement between government and religion prohibited by the First Amendment to the U.S. Constitution. Relevant amendment: First Significance: In the mid-twentieth century, the Supreme Court settled on

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a view of the establishment clause that erected a formidable wall between religious and governmental affairs. However, later cases permitted religious symbols and activities in some public contexts and sometimes gave religious groups equal access to government facilities and benefits. The Supreme Court made a relatively late entrance into the long debate about the appropriate relation between religion and government in the United States, not adding its voice until the 1940’s, more than one hundred and fifty years after the writing of the First Amendment, which restrains Congress from making any laws “respecting an establishment of religion.” In 1868 in the wake of the Civil War, the Reconstruction Congress proposed and the states ratified the Fourteenth Amendment to the Constitution. This amendment’s due process clause protects citizens from deprivation of life, liberty, or property without due process of law. In the 1940’s, the Court ruled that this clause made the provisions of the First Amendment applicable to the states, thus making state and local governments subject to the Constitution’s prohibition against establishment of religion. Aid to Religious Institutions. In its earliest significant interpretation of the establishment clause, the Court addressed the contentious issue of whether and to what extent the establishment clause limited government aid to private religious schools. In Everson v. Board of Education of Ewing Township (1947), the Court considered the constitutionality of state reimbursements to parochial school parents for the expense of transporting their children to the schools. A closely divided Court eventually upheld these reimbursements, characterizing them as only incidentally aiding religious schools in a limited measure comparable to that entailed in police and fire protection for religious institutions. More important, though, in an opinion by Justice Hugo L. Black, the Court set forth the formulation of the establishment clause that would guide its various encounters with church-state problems in the future. At the very least, the Court insisted, the establishment clause means that government can neither establish a particular state or national church, prefer one religion over another, nor aid religion. Finding principles to transform the sparse words of the establishment clause into a guide for the various intersections between government and religion in modern society was no easy task. Although Everson outlined in

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broad strokes the general contours of the establishment prohibition, it did not settle the many issues that still lay before the Court. The Court made its most enduring attempt to craft a more precise statement in 1971, when it eventually settled on what would thereafter be referred to as the Lemon test. Lemon v. Kurtzman (1971) involved state laws that directly subsidized the salaries of teachers who taught secular subjects in parochial and other nonpublic schools. The Court found these laws unconstitutional on the basis of its conclusion that they offended a threepronged test of compliance with the establishment clause. To satisfy the clause, a law must have a secular legislative purpose, have a primary effect that neither advances nor hinders religion, and not foster an excessive entanglement between government and religion. The state laws at issue in Lemon created an excessive entanglement between government and religious institutions, the Court concluded, since teachers—even of secular subjects—in parochial schools would be inextricably intertwined with the religious mission and activities of those schools. Any surveillance of teachers in parochial schools intended to prevent such an intertwining would itself constitute an impermissible entanglement. Sustained criticism of the Lemon test proliferated in the following years, both on and off the Court. Critics argued that the test was in principle hostile to religion and that in practice it had produced inexplicable results. Under the test, for example, the Court had approved loans of secular textbooks to parochial schools but not loans of maps. Similarly, the Court in Everson had approved reimbursements of expenses of parents to transport their children to parochial schools, but it subsequently invalidated state programs that attempted to subsidize the cost of field trips taken by parochial school children. Notwithstanding this criticism, the Court declined to overrule Lemon explicitly, although during the 1980’s and 1990’s it increasingly formulated the establishment prohibition in terms other than those adopted in Lemon. Furthermore, a majority of the Court continued to construe the establishment clause as placing significant limits on direct aid to religious institutions. Free Speech and the Establishment Clause. In early establishment cases, the Court insisted that any significant aid to religion was forbidden by the First Amendment. However, in some contexts, this prohibition against aiding religion collided with notions of fairness and equality. Under the doctrine of free speech, for example, the Court has generally frowned on government laws and policies that discriminate against speech on the ba-

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sis of its content. Suppose, then, that a university allows a wide assortment of student groups to use university classrooms after hours for meetings and that a group of religious students seeks to use a classroom. Allowing the religious students to use university facilities might be characterized as “aiding” religion; nevertheless, refusing to allow this use would clearly constitute discrimination against the religious speech of the students. In Widmar v. Vincent (1981), the Court resolved this apparent conflict between the principles of free speech and the establishment clause by ruling in favor of the religious students. The establishment clause, according to the Court, did not prevent the use of university facilities by religious groups on equal terms with other groups. Accordingly, any discrimination against the religious groups in the access to generally available facilities was an impermissible discrimination against them. The Widmar principle was regularly invoked by the Court during the 1980’s and 1990’s to uphold claims brought by religious believers alleging that they had been discriminated against in the name of the establishment clause. In Lamb’s Chapel v. Center Moriches Union Free School District (1993), the Court declared unconstitutional a school’s discriminatory treatment of a religious group that sought to use school facilities after hours. The Court held that the school’s practice of allowing outside groups to use its facilities after hours for social or civic meetings prevented it from barring religious groups from similar uses. Moreover, in Rosenberger v. University of Virginia (1995), the Court expanded the antidiscrimination principle of Widmar to include discrimination in the allocation of student fees. In Rosenberger, a Christian student group at the University of Virginia sought to take advantage of the university’s practice of paying the printing costs of student organizations who published printed materials. When the Christian student group sought payment for the costs of printing a proselytizing newsletter, the university refused, claiming that the establishment clause prohibited this kind of assistance to a religious organization. A majority of the Court disagreed, however, and concluded that the establishment clause did not bar the payments at issue and that the free speech clause prohibited the university’s discriminatory treatment of the religious group. Religion and Public Schools. The Court’s late twentieth century enthusiasm for equality concerns has partially breached the so-called “wall of separation” between church and state that once characterized the Court’s pronouncements concerning the establishment clause. However, in one

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area, at least, this wall of separation remains formidable. Beginning with the school prayer decisions in the 1960’s, the Court has been especially vigilant in policing alliances between government and religion in the public schools. In Engel v. Vitale (1962), the Court invalidated the practice of having public school children recite a prayer composed by state education officials. A year later, in Abington School District v. Schempp (1963), the Court extended this holding to prohibit recitations of the Lord’s Prayer and devotional Bible readings in public school classrooms. Eventually, the Court would reach a similar conclusion regarding prayers offered at graduation ceremonies, finding in Lee v. Weisman (1992) that they also violated the establishment clause. After the first decisions in the school prayer cases, the Court developed the three-part Lemon test, which required that laws and official government policies have secular purposes and effects and not excessively entangle government and religion. When the Court entertained a new series of cases involving religion and public schools in the 1980’s, it focused especially on the secular purpose requirement. In the first case, Stone v. Graham (1980), the Court held unconstitutional the posting of copies of the Ten Commandments in public school classrooms. The school district in question argued that it had a legitimate secular purpose in calling attention to an important source of Western law. A majority of the Court concluded, however, that the principal justification behind the display of the Ten Commandments was a religious one and that this purpose offended the establishment clause. In the second case, Wallace v. Jaffree (1985), the Court considered an Alabama statute that had authorized moments of silence in school classrooms for meditation and prayer. Although in separate opinions, a majority of the members of the Court suggested that moment of silence statutes might be constitutional in principle, the Court nevertheless concluded that the Alabama statute had been supported by an unconstitutional religious purpose of returning prayer to public schools. Finally, in Edwards v. Aguillard (1987), the Court turned to the secular purpose requirement once again to invalidate a Louisiana statute that had mandated the teaching of creationism in schools that taught the theory of evolution. Public Religious Ceremonies and Symbols. The vigilance with which the Court patrolled the boundaries of church and state in the public schools did not always manifest itself in other public contexts. The Court wrestled with the long-standing presence in American life of a measure of reli-

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giousness in public contexts and sought to harmonize this presence with its establishment doctrine. For example, in Marsh v. Chambers (1983), the Court acknowledged that prayers in certain public contexts had been commonplace in U.S. history since its earliest days. The First Congress had appointed chaplains to its sessions with prayers, and Court sessions themselves began with the invocation, “God save the United States and this Honorable Court.” Faced with this historical precedent, a majority of the Court—in an opinion by Chief Justice Warren E. Burger—concluded that the Nebraska legislature’s practice of beginning its sessions with a prayer offered by a chaplain paid to do so did not offend the establishment clause. Even more controversial was the Court’s decision in Lynch v. Donnelly (1984), which upheld a city’s display of the traditional Christian nativity scene during the Christmas season. Chief Justice Burger again announced the Court’s opinion and declared that the city had a secular purpose in sponsoring the nativity scene—to celebrate the Christmas holiday and to depict the origins of the holiday. The decision was closely divided, however, and Justice Sandra Day O’Connor provided the crucial fifth vote needed to reach this result. Although she agreed with the result articulated by the chief justice, in her opinion, the presence along with the nativity scene of other holiday symbols inoculated the nativity scene from an establishment violation. Because the nativity scene was set among such items as a Santa Claus house, reindeer and a sleigh, candystriped poles, a Christmas tree, carolers, and lights, it could not be seen as an endorsement of a particular religious faith, according to Justice O’Connor. Five years later, in Allegheny County v. American Civil Liberties Union Greater Pittsburgh Chapter (1989), the Court would reach a different result concerning a nativity scene displayed alone on public property during the Christmas season. Set in this context, the nativity scene amounted to an endorsement of Christianity according to a majority of the Court and therefore violated the establishment clause. The Meaning of the Establishment of Religion. The last two decades of the twentieth century saw increasing dissatisfaction on the Court with its establishment doctrine. The three-part Lemon test that had governed the Court’s resolution of establishment issues for a time seemed less capable of continuing to command assent among a majority of justices. In this state of disarray, individual members of the Court attempted to articulate new understandings of the antiestablishment principle. Justice William H. Rehnquist, for example, suggested in his dissent to the Court’s deci-

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sion in Wallace v. Jaffree that the establishment clause should be understood only to prevent government preference for one religion over another. So long as government endorsed or aided religion in general, he contended, rather than endorsing or aiding a particular religion, then the establishment clause was not violated. Justice Anthony M. Kennedy, in the early 1990’s, seemed to propose his own key to understanding the establishment clause. In Lee v. Weisman, for example, his opinion for the Court focused on the coerciveness of a graduation prayer on those who did not share the religious tenets expressed in the prayer. This emphasis seemed to suggest that noncoercive government alliances with religion might survive an establishment clause challenge. Finally, and most important, in the mid-1980’s Justice Sandra Day O’Connor proposed that the hallmark of an establishment clause violation was its purpose or effect in endorsing religion generally over nonreligion or in endorsing a particular religion over others. She first elaborated this no-endorsement vision of the establishment clause in a series of concurring opinions, beginning with the first nativity scene case, Lynch v. Donnelly. By the end of the 1980’s, however, her no-endorsement test seemed to have captured a majority view on the Court because the Court applied her test to resolve another nativity scene issue in Allegheny County v. American Civil Liberties Union, Greater Pittsburgh Chapter. However, during the 1990’s, Justice O’Connor’s vision of the establishment clause was not featured again in opinions for the Court. All during this decade, no majority ever coalesced to overrule the three-part test of Lemon. Instead, the justices were fragmented in their views of the establishment clause, agreeing sometimes on the result in particular cases but seldom agreeing on the broader principles that explained these results. Further Reading The most comprehensive collection of Court decisions relating to the First Amendment’s religion clauses is Toward Benevolent Neutrality: Church, State, and the Supreme Court, edited by Ronald B. Flowers and Robert T. Miller (Waco, Tex.: Baylor University Press, 1998). Similar, though less inclusive collections of Court cases may be found in The Believer and the Powers That Are: Cases, History, and Other Data Bearing on the Relation of Religion and Government, by John Thomas Noonan, Jr. (New York: Macmillan, 1987), and Religious Liberty in the Supreme Court: The Cases That Define the Debate over Church and State, edited by Terry Eastland (Grand Rapids, Mich.: Wm. B. Eerdmans, 1995). The Court has regularly consulted the history

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of church-state relations in colonial and revolutionary America to inform its interpretation of the establishment clause. Thomas Curry’s The First Freedoms: Church and State in America to the Passage of the First Amendment (New York: Oxford University Press, 1986) contains an excellent treatment of these periods. A Nation Dedicated to Religious Liberty: The Constitutional Heritage of the Religion Clauses, by Arlin M. Adams and Charles J. Emmerich (Philadelphia: University of Pennsylvania Press, 1990), combines both coverage of the historical background of the religion clauses and their current interpretation by the Court. For an influential argument that the Court has given too prominent a place to religious skepticism in its interpretation of the religion clauses, see Mark DeWolfe Howe’s The Garden and the Wilderness: Religion and Government in American Constitutional History (Chicago: University of Chicago Press, 1965). An opposing viewpoint may be found in The Godless Constitution: The Case Against Religious Correctness, by Isaac Kramnick and R. Laurence Moore (New York: W. W. Norton, 1996). Everson Revisited: Religion, Education, and Law at the Crossroads, edited by Jo Renee Formicola and Hubert Morken (Lanham, Md.: Rowman & Littlefield, 1997), explores the significance and future of the Court’s seminal establishment clause decision in Everson v. Board of Education. Robert S. Alley’s School Prayer: The Court, the Congress, and the First Amendment (Buffalo, N.Y.: Prometheus Books, 1994) provides an evenhanded treatment of one of the most contentious areas of the Court’s establishment clause law. The increasing prominence of the principle of equality over that of separation is explored and supported in Equal Treatment of Religion in a Pluralistic Society, edited by Stephen V. Monsma and J. Christopher Soper (Grand Rapids, Mich.: Wm. B. Eerdmans, 1998). This movement is contrasted with the case for nearly total separation of government and religion made by Marvin E. Frankel, a former New York federal judge, in Faith and Freedom: Religious Liberty in America (New York: Hill & Wang, 1994). Timothy L. Hall

RELIGION, FREEDOM OF Description: Freedom of religious belief and practice protected, in significant part, by the free exercise clause of the First Amendment. Relevant amendment: First

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Significance: The Supreme Court has generally interpreted the free exercise clause of the First Amendment to protect citizens from unfavorable government treatment on account of their religious beliefs or lack thereof, but the Court has not typically protected religious adherents from conflicts between their conscientious practices and the requirements of generally applicable laws. The Supreme Court’s attention to religious freedom has focused primarily on the meaning of the First Amendment’s free exercise clause, though from time to time it has also considered other federal and state laws regarding religious liberty. The First Amendment prevents Congress from making laws prohibiting the free exercise of religion. Although the text of the clause limits its application to congressional infringements on religious liberty, the Court, beginning in the 1940’s, declared this liberty to be one of the fundamental rights of free citizens made applicable to state and local governments through the due process clause of the Fourteenth Amendment. Therefore, as currently interpreted by the Court, the constitutional protection of the free exercise of religion applies to government action at every level. The War Against Polygamy. In modern times, government actions specifically targeting unpopular religions for unfavorable treatment have been relatively rare. Far more common are claims by religious believers for exemptions from the requirements of otherwise generally applicable laws. The first significant claim of this sort reached the Court in the last part of the nineteenth century. The Court’s resolution of the issue in that context—although briefly repudiated for part of the twentieth century— continues to guide its treatment of free exercise claims. The case that became Reynolds v. United States (1879) grew out of efforts by the administration of President Ulysses S. Grant to stamp out the practice of polygamy in the Utah territory. Relying on a federal antibigamy law that prohibited the marriage of one person to multiple spouses, the Grant administration prosecuted numerous members of the Church of Jesus Christ of Latter-day Saints (Mormons) who, as a matter of religious belief and practice, had consummated bigamous marriages. The Mormon Church attempted to challenge the federal law through a test case brought by George Reynolds, secretary to Mormon leader Brigham Young. After being convicted of bigamy in the Utah territorial district court and having his conviction affirmed in the Utah territorial supreme

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court, Reynolds appealed his case to the U.S. Supreme Court. The essence of his claim was that the First Amendment’s free exercise clause, in guaranteeing religious liberty, prevented the application against him of the federal antibigamy law, since bigamous marriage practices were an essential component of his religion. The Court unanimously rejected Reynolds’s claim. In an opinion by Justice Morrison R. Waite, the Court distinguished between religious beliefs and religious actions, determining that beliefs were immune from legislative prescription but that actions fell within the proper provenance of the law. Reynolds, the Court opined, had been prosecuted not for his beliefs but for his bigamous actions. By the free exercise clause, “Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.” Moreover, the Court readily concluded that the practice of polygamy violated important social duties and was subversive of good order. Congress, then, had acted fully within its constitutional authority. The Court also determined that the free exercise clause did not guarantee Reynolds an exemption from an otherwise valid exercise of lawmaking authority. Surely the believer in human sacrifice was not entitled to an exemption from the laws of murder nor was the widow who thought it her religious duty to burn herself on the funeral pyre of her husband entitled to an exemption from the laws forbidding suicide. In both cases, the law prohibited such acts, even when motivated by conscientious religious beliefs; and the free exercise clause did not secure any exemptions from these prohibitions. A contrary result was unthinkable to the Court. “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.” Eleven years later, the Court lent its aid again to the war against polygamy. In Davis v. Beason (1890), the Court upheld an Idaho territorial statute that denied the vote to those who practiced or advocated the practice of polygamy or who belonged to an organization that did so. The Court demonstrated the frailty of the barrier between the absolute protection given to religious beliefs and the lawful regulation of religious practices. Under the statute at issue in the case, mere advocacy of polygamy or membership in an organization—such as the Mormon church—that engaged in such advocacy was sufficient to suffer loss of voting rights. Moreover, the Court adopted a tightly circumscribed notion of religion itself. Religion, the Court declared, had to do with one’s relation to the Creator

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and to the obligations that arose from such a relation. Under this definition, the Court stripped the Mormon practice of polygamy of its claimed religiousness, thus finding additional reason to deny it protection under the free exercise clause. Religion and the Political Process. For almost a hundred years, the interpretation of the free exercise clause adopted in Reynolds meant that religious believers were protected against being deliberately targeted by the government for hostile action but not from the burdens occasioned by generally applicable laws. As governments at all levels increased the measure of their lawmaking activity in the twentieth century, inadvertent collisions between religious practice and lawmaking increased in frequency. When legislative policies conflicted with the religious practices of influential segments of the population, lawmakers typically saw fit to craft exemptions for the religious believers in question. For example, when Congress implemented Prohibition’s ban on consumption of alcoholic beverages in the early part of the twentieth century, it took care to craft an exemption for the sacramental uses of wine important to many Christian faiths. Similarly, when Congress provided for compulsory military service at various junctures during the twentieth century, it made allowance for certain religious objections to combat by placing the holders of the requisite conscientious beliefs in noncombat positions. At least in the case of conscientious objector status, the Court consistently took the position that the free exercise clause did not require this accommodation, but the normal workings of the political process were generally sufficient to shield influential religious practices from burdensome encounters with the law. Minority faiths, however, could not be assured of such solicitude from the political process, and the ruling in Reynolds deprived them of any constitutional harbor. The Warren Court Revision. For a brief interval during the second half of the twentieth century, the Court appeared to reconsider Reynolds and adopt an interpretation of the First Amendment far more protective of religious practices. In Sherbert v. Verner (1963), the Warren Court turned again to the question of whether a neutral law of general applicability might nevertheless amount to an unconstitutional burden on the free exercise of religion. At issue in Sherbert was a state unemployment compensation scheme that refused to pay benefits to a Seventh-day Adventist who, for religious reasons, refused to work on Saturday, the day of her

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Sabbath. State officials judged that this refusal did not amount to the kind of “good cause” that would otherwise excuse a recipient of unemployment compensation benefits from accepting available work. A majority of the Court, however, in an opinion by Justice William J. Brennan, Jr., ruled that the state’s failure to pay the Sabbatarian unemployment benefits amounted to a violation of the free exercise clause. To condition the claimant’s receipt of unemployment benefits on her willingness to violate her conscientiously held religious beliefs required that the state demonstrate some overwhelming interest at stake in its legal requirement. Finding no such interest, the Court held that the state was required to pay the claimant the benefits. The Court’s opinion in Sherbert seemed to indicate that the free exercise clause protected religious believers from even the unintended effects of otherwise generally applicable laws. The Court’s remedy in such cases was not to invalidate the law at issue in its entirety but simply to craft an exemption from the law’s demands for the religious claimant. Nine years after the Sherbert decision, the Court revisited this issue and seemed to reaffirm its basic holding in Sherbert. In Wisconsin v. Yoder (1972), the Court considered whether a state compulsory attendance statute could be used to force Amish parents to send their children to school after age fourteen. First, the Court found that the statute imposed a burden on Amish religious beliefs and practices because the Amish insisted that their children would be unfavorably influenced by further schooling after the eighth grade. Second, the Court denied that the state had any compelling purpose for requiring further schooling of Amish children. Accordingly, a majority of the Court held, in an opinion by Chief Justice Warren E. Burger, that the Amish were exempted from the compulsory attendance statute, insofar as it required them to send their children to school beyond the eighth grade. Principle and Practice. For roughly two decades after its decision in Yoder, the Court continued to adhere to the Sherbert/Yoder formulation of the free exercise clause: Religious believers were entitled to exemptions from laws that burdened their religious practices unless such laws were justified by some compelling governmental interest. Nevertheless, during these years, the Court routinely ruled against religious claimants who asserted free exercise claims. Sometimes, the Court found a significantly weighty public interest at stake, such as when it declined to exempt an Amish employer from the requirement of paying social securities taxes

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for his employees in United States v. Lee (1982). In other cases, the Court found that the government interests involved in particular environments such as prisons or the military warranted greater deference to the government policies. Therefore, in Goldman v. Weinberger (1986), the Court upheld an Air Force policy that prohibited an Orthodox Jewish officer from wearing a yarmulke, and in O’Lone v. Estate of Shabazz (1987), the Court found that reasonable prison regulations would be upheld even when they conflicted with the sincerely held religious beliefs of prisoners. Finally, in some cases, the Court determined that government decisions about how to conduct its own affairs did not amount to a burden on religious belief or practice. For example, in Lyng v. Northwest Indian Cemetery Protective Association (1988), a majority of the Court refused to interfere with government plans to allow the construction of a logging road on government property close to a sacred Native American religious site. Although the logging road would severely impair Native American religious practices, the Court held that the free exercise clause did not prevent the government from using its property as it saw fit. The Peyote Case. Throughout the 1980’s the Court continued to affirm in principle the rigorous standard of protection for religious liberty set forth in Sherbert and Yoder, but to find in practice any number of reasons for rejecting particular religious claims. In Employment Division, Department of Human Resources v. Smith (1990), the Court’s principles finally caught up with its practice. At issue in the case were two Native Americans who had been fired from jobs as drug rehabilitation counselors because they had ingested peyote in connection with Native American religious rites. The state of Oregon, where the case arose, classified peyote as a controlled substance and made no exception for sacramental use by Native Americans. After being fired, the two Native Americans sought to obtain unemployment compensation benefits but were refused them on the grounds that they had been fired for job-related misconduct. They, in turn, contested this refusal, claiming that it violated their rights to free exercise of religion. The Court, however, rejected this claim. An application of the Sherbert/Yoder test would have required the state of Oregon to demonstrate some compelling purpose for its peyote law. In fact, Justice Sandra Day O’Connor, agreeing with the result in the case but not in the reasoning of the majority opinion by Justice Antonin Scalia, argued that there was such a compelling purpose and that the Native Americans were thus entitled to no exemption for the Oregon con-

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trolled substance law. Nevertheless, a majority of the Court followed Justice Scalia in revisiting the rule in Sherbert and Yoder. According to Scalia, these cases announced no general rule but merely offered protection for religious believers in certain limited circumstances. The true rule, he declared, was that religious believers normally had no recourse under the free exercise clause against laws that were not targeted at suppressing their religious beliefs or practices but simply had the effect of burdening those beliefs or practices. Because Oregon’s peyote law had not been created to target Native American religious practices but simply had the incidental effect of burdening that practice, the law was not subject to a successful free exercise challenge. The Religious Freedom Restoration Act. Reactions to the Court’s decision in Smith were immediate and stridently critical. Religious groups of all stripes combined with political leaders and legal scholars in denouncing the decision as a betrayal of the principles of religious liberty. In direct response to the Smith decision, Congress passed the Religious Freedom Restoration Act (1993) three years later. This law required exemptions for religious believers from federal, state, or local laws that burdened their religious practice unless some compelling reason justified the law and the law was the least restrictive means of furthering the interest. To enact the law, at least as it applied to state and local governments, Congress relied on the Fourteenth Amendment, which authorizes Congress to pass laws to enforce the provisions of this amendment. Congress reasoned that it had power to enforce the protection of religious liberty because this liberty was clearly among those subject to the Fourteenth Amendment’s prohibition against depriving persons of “life, liberty, or property without due process of law.” Congress’s attempt to invigorate the protections given religious conscience did not go unchallenged. As religious believers sought to wield the Religious Freedom Restoration Act in confrontations with state and local laws, government officials in these cases responded by arguing that Congress lacked the power to pass the Religious Freedom Restoration Act. In the last part of the 1990’s one of these cases reached the Court. Boerne v. Flores (1997) involved a dispute between a Texas city and a Roman Catholic Church. The church wished to renovate its facilities to accommodate a swelling congregation. The city of Boerne, however, wished to preserve the historic ambiance of its downtown district, especially the mission-style Catholic sanctuary, and passed a historical preser-

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vation ordinance that blocked the church’s plans. When the church filed suit, claiming that the ordinance violated its rights under the Religious Freedom Restoration Act, the city responded by arguing that the federal law was unconstitutional. In a decision that surprised many observers, a majority of the Court agreed with the city and held that Congress’s attempt to overrule the effect of the Smith decision invaded the Court’s prerogatives. Championing its power to define the meaning of constitutional protections for liberty, the Court ruled that Congress lacked power to substitute its own view of free exercise for the view articulated by the Court’s opinion in Smith. Further Reading Toward Benevolent Neutrality: Church, State, and the Supreme Court, edited by Ronald B. Flowers and Robert T. Miller (Waco, Tex.: Baylor University Press, 1998) is a comprehensive collection of Court decisions relating to the religion clauses in the First Amendment. Less inclusive collections include The Believer and the Powers That Are: Cases, History, and Other Data Bearing on the Relation of Religion and Government, by John Thomas Noonan, Jr. (New York: Macmillan, 1987), and Religious Liberty in the Supreme Court: The Cases That Define the Debate over Church and State, edited by Terry Eastland (Grand Rapids, Mich.: Wm. B. Eerdmans, 1995). The Amish and the State, edited by Donald B. Kraybill (Baltimore, Md.: Johns Hopkins University Press, 1993), provides useful background for the Yoder case and the ongoing conflicts between the Amish and government concerning matters of religious conscience. Native American Cultural and Religious Freedoms, edited by John R. Wunder (New York: Garland, 1996), offers similar background to the Court’s encounters with Native American religious practices. Bette Novit Evans’s Interpreting the Free Exercise of Religion: The Constitution and American Pluralism (Chapel Hill: University of North Carolina Press, 1997) examines the Court’s decisions regarding religious liberty, focusing especially on the role of religious freedom in nurturing pluralism. The Catholic perspective of a respected federal appellate judge on religious liberty in the United States may be found in The Lustre of Our Country: The American Experience of Religious Freedom, by John T. Noonan, Jr. (Berkeley: University of California Press, 1998). In The Culture of Disbelief: How American Law and Politics Trivialize Religious Devotion, by Stephen L. Carter (New York: Basic Books, 1993), the author challenges the Court’s religion cases as having undermined religious devotion. Timothy L. Hall

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SCHOOL PRAYER Description: Prayers and Bible readings sanctioned by school officials were efforts to promote religious beliefs and values in students in public educational institutions. Relevant amendment: First Significance: The practice of reciting officially sanctioned prayers or reading from the Bible in U.S. public schools was challenged as a violation of the doctrine of separation of church and state under the establishment clause of the First Amendment of the U.S. Constitution. Supreme Court rulings resulted in strong public criticism and in continuing efforts by Congress to reverse the Court’s decision. In 1962 the Supreme Court issued one of its most controversial decisions in Engel v. Vitale. At issue was a nondenominational prayer composed by the regents of the state of New York that was to be recited in public school classrooms by teachers on a voluntary basis. It read: “Almighty God we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers, and our Country.” Justice Hugo L. Black,

After the Supreme Court banned school prayer, teachers found other ways to start the school day. (Library of Congress)

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writing the opinion for the Court, noted that the apparatus of the public school system was employed in the promotion of religion and thus resulted in a violation of the establishment clause. A year later, the Court struck down a state-mandated practice of reading passages from the Bible without commentary in Abington School District v. Schempp. In his opinion, Justice Tom C. Clark applied the same “strict separation” analysis. In its decision in Lemon v. Kurtzman (1971), the Court developed the establishment clause test that remains in use and is applied in church-state cases. Chief Justice Warren E. Burger wrote, “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster ‘an excessive government entanglement with religion.’” The first element of this three-prong test was invoked in Wallace v. Jaffree (1985) when the Court ruled unconstitutional an Alabama law requiring a daily moment of silence for prayer or meditation in public schools. The Lemon test was reaffirmed in Lee v. Weisman (1992), when the Court struck down Providence, Rhode Island, public school principals’ use of members of the clergy to offer invocation and benediction prayers as part of the formal graduation ceremonies for middle and high schools. In its efforts to define and apply the establishment clause, the Court developed several perspectives on how best to ensure that government refrain from endorsing a particular faith while at the same time protecting the religious freedom of liberty and conscience. The result often was a confusing line of precedents that offered no distinct or enduring first principles that work in all situations. Despite continuing and heavy criticism levied against the Court, however, its separationist stance on government-supported religion in public schools has remained firm. Kenneth F. Mott

SEARCH AND SEIZURE Description: The law enforcement practice of searching people and places in order to seize evidence or suspects Relevant amendment: Fourth Significance: The Fourth Amendment requires an appropriate balance between criminal investigations and protection of people’s privacy and possessions

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Search and seizure law provides a focal point for the collision of competing objectives within the justice system. On the one hand, police must search for and seize evidence and suspects in order to enforce the criminal laws. On the other hand, the Fourth Amendment’s prohibition on “unreasonable” searches and seizures aims to avoid granting too much power to police officials and to preserve people’s privacy and liberty. The U.S. Supreme Court has regularly been presented with cases requiring the justices to interpret the Fourth Amendment in a way that satisfies the dual goals of protecting people’s rights and simultaneously permitting police officers to conduct effective investigations. Historical Origins. American search and seizure law can be traced to English origins. Although the roots of search and seizure in English common law are not clear, the English gradually developed the practice of using warrants to justify government intrusions into citizens’ homes, usually in a search for stolen goods. Eventually, English kings began to use general warrants justifying unlimited searches. These warrants did not specify the places to be searched or the items being sought. In effect, law enforcement officers could use the general warrants to search as they pleased. For example, warrants came to be used to discover whether people possessed any books or pamphlets that criticized the king. Because of these abusive practices, in the mid-eighteenth century Parliament passed resolutions condemning general warrants, and English courts began to limit the government’s use of such warrants. In the American colonies, people felt victimized by “writs of assistance,” general warrants used by British officials to conduct exploratory searches of people’s homes and businesses. These searches were frequently used to determine whether all proper taxes and duties had been paid to the king for goods produced, bought, or sold. Disputes about such British tax policies and search and seizure methods contributed to the American Revolution. After independence from Britain was achieved, the authors of the Bill of Rights had keen memories of their dissatisfaction with British search and seizure practices. As a result, they wrote the Fourth Amendment in order to set explicit limits on the government’s ability to conduct searches and undertake seizures. According to the Fourth Amendment, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by

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oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The drafters of the Bill of Rights thus sought to prevent unreasonable searches by requiring the use of specific warrants that were to be issued by neutral judges after the presentation of evidence justifying the need for a search. Legal Doctrines. For most of American history, the Fourth Amendment had little impact on police searches because the Supreme Court paid little attention to such issues. Moreover, the Fourth Amendment was initially applied only against federal law enforcement officials and not against state or local police. Some state judges interpreted their state constitutions to place limits on local enforcement activities, but police officers in many areas searched people and homes with impunity. Such searches were sometimes carried out for purposes of intimidation and harassment of the poor, members of racial minority groups, or political opponents of the local mayor or police chief. The Supreme Court’s development and enforcement of strong search and seizure rules began with the case of Weeks v. United States in 1914. Here the Court invalidated federal officers’ warrantless search of a home by creating the “exclusionary rule.” The Court declared that if any federal searches violate the Fourth Amendment, no evidence discovered during those searches can be used against a defendant in court, even if the evidence demonstrates the defendant’s guilt. By making exclusion of evidence the remedy for improper searches and seizures, the Supreme Court effectively declared that it was more important to protect people’s rights to privacy and liberty than to make sure that every criminal law was strictly enforced. Advocates of the exclusionary rule assumed that it would deter police from conducting improper searches. In 1949, the Supreme Court declared that the Fourth Amendment’s protections are also applicable against state and local police, although the justices declined to apply the exclusionary rule to such officers (Wolf v. Colorado). In 1961, however, the Court began to treat state and local police searches in the same manner as federal searches by applying the exclusionary rule to all law enforcement officers (Mapp v. Ohio). The Court’s decision generated an outcry from local law enforcement officials, who claimed that the justices were preventing the police from catching guilty criminals. During the 1960’s, many politicians criticized the Supreme Court’s decisions on this and other cases having to do with the rights of criminal defendants.

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One such critic was Richard Nixon, who, after winning the presidency in 1968, used his appointment powers to place on the Supreme Court new justices who believed that the search and seizure rules were too harsh on the police. One Nixon appointee, Chief Justice Warren Burger, wrote an opinion containing strident criticisms of the exclusionary rule and expressed the view that Fourth Amendment rights could be protected without excluding useful evidence found during improper searches (Bivens v. Six Unknown Named Agents, 1971). Eventually, the Supreme Court’s composition changed to contain a majority of justices who shared Burger’s view. Thus, during the 1980’s in particular, the Supreme Court issued many new decisions making it easier for law enforcement officers to conduct searches and seize evidence without obtaining proper warrants. For example, in United States v. Leon (1984), the Supreme Court created a “good-faith” exception to the exclusionary rule by permitting police to use evidence seized under a defective warrant that had been based on inadequate justification. Because the error had been made by the judge who issued the warrant rather than by the police officers who conducted the search, the Court permitted the evidence to be used. In another example of relaxed standards, the justices permitted police to search an apartment based on an erroneous belief that the suspect’s girlfriend possessed the authority to consent to the search (Illinois v. Rodriguez, 1990). The Supreme Court has identified a variety of situations in which police officers can search and seize people or evidence without any warrant. Such situations include automobile searches, stopping and frisking suspicious persons on the street, searches incident to an arrest, and searches conducted in emergency circumstances. In each of these circumstances, society’s need to enforce laws and preserve criminal evidence could be defeated if officers were always required to obtain a warrant before conducting a search. Automobiles, for example, are mobile and could disappear with important evidence if the Supreme Court did not define some circumstances in which warrantless searches are permissible. In defining these circumstances, however, the justices seek to limit the conditions that justify a search in order to withhold from police officers the power to conduct searches on a whim. A Difficult Balance. American search and seizure laws reflect changing decisions about the most appropriate balance between the need to investigate crimes and the Fourth Amendment’s mandated goal of protecting

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people from governmental intrusions. During the 1960’s, when many Americans became keenly aware of the concept of constitutional rights and the existence of harsh and discriminatory law enforcement practices, the Supreme Court gave great emphasis to the protection of rights, even if it meant that some guilty offenders would go free. In the 1970’s and 1980’s, however, fear of crime became a growing concern for many Americans. The greater attention given to issues of law and order by the public and politicians was reflected in changes in the Supreme Court’s composition and, eventually, in changes in legal doctrines affecting search and seizure. By the mid-1990’s, the Supreme Court had relaxed many of the restrictions placed on police officers’ search and seizure methods during the 1960’s. Although the rearrangement of priorities gave police officers a freer hand in conducting searches and using improperly obtained evidence, the changes did not represent an abandonment of the Fourth Amendment’s restrictions on search and seizure. Even the justices who believed that greater emphasis should be placed on crime control still identified some circumstances in which police officers’ search and seizure activities went beyond constitutional boundaries. For example, in Minnesota v. Dickerson (1993), the Court invalidated the seizure of cocaine from a man’s pocket, asserting that police engaged in a warrantless stop and frisk search of a suspicious person on the street had erred in extending their inquiry beyond a search for a weapon. Another factor also helped to protect the Fourth Amendment. By the late twentieth century, police officers and judges had become better trained, more professional, and less connected to and controlled by local patronage politics. Thus these officials had greater legal knowledge and ethical sensitivity than their predecessors and sought on their own to respect citizens’ Fourth Amendment rights. Debates about search and seizure are likely to continue, because of the difficulties involved in achieving a consensus among policy makers, scholars, and judges about the appropriate interpretation of the Fourth Amendment. The inevitable collisions between the social goals of vigorously investigating crimes and protecting citizens from governmental intrusions virtually guarantee that courts will continually be presented with situations in which the Fourth Amendment must be interpreted to strike an appropriate balance between these goals. The most significant conflicts about search and seizure have generally focused on the exclusionary rule. Many scholars and judges believe that the Fourth Amendment is

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merely an empty promise if police officers are permitted to use improperly obtained evidence, yet the Supreme Court gradually permitted greater use of such evidence during the 1980’s. As society’s values change and new justices are appointed to the Supreme Court, there are likely to be further developments in search and seizure doctrine. Thus it is difficult to imagine that search and seizure issues will ever disappear from the nation’s justice policy agenda. Christopher E. Smith

SEARCH WARRANT REQUIREMENT Description: The necessity of obtaining a warrant from a judge, based on meeting certain criteria, before law enforcement personnel can conduct a search. Relevant amendment: Fourth Significance: The Supreme Court generally ruled against warrantless searches, which violate Fourth Amendment protections against unreasonable searches, but allowed some exceptions. While under British rule, the thirteen North American colonies were subject to a system of law, one aspect of which was the writ of assistance, which allowed government officials to conduct general searches. The writ of assistance empowered local authories to search anywhere for contraband. British judges did not need to hear any facts regarding illegal activity before a writ was issued and a search conducted. A search could be conducted on mere suspicion and at any location. After the American Revolution, the citizens of the new country were interested in limiting government searches. The Bill of Rights, ratified in 1791, contained the Fourth Amendment, which protected people from unreasonable searches. The Fourth Amendment set out the requirements the government must meet before a search warrant can be issued. The amendment states a warrant cannot be issued “but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Requirements of a Search Warrant. Through numerous cases, the Supreme Court has defined the exact requirement of the warrant clause.

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The Court has repeatedly defined the “probable cause” needed for a search warrant to be issued. To obtain a search warrant, law enforcement officers must show they have reliable and sufficient facts that would cause a reasonable person to believe a criminal act has been committed and that items or a person subject to seizure are at the location to be searched. Probable cause for the warrant cannot be based on what the subsequent search uncovers, only on the facts known when the warrant was issued. The Court also ruled that the probable cause must have been obtained legally. If law enforcement obtains information through an illegal search, it cannot remove the unconstitutional taint on the evidence by later applying for a search warrant. The amount of time between the gathering of probable cause and the execution of the search warrant may make the warrant “stale.” If an inordinate amount of time passes and doubt arises whether the object of the warrant is still at the location, then the warrant may become invalid because of outdated probable cause. The warrant must particularly describe the place to be searched or the item or person to be seized. The place to be searched must be described in the warrant to the extent that it can be set apart from all other locations. The Court has ruled that if an officer can with reasonable effort ascertain and identify the place to be searched then the warrant will be valid. The warrant must also describe items to be seized well enough that an officer can exclude all other items. Failure of the description to be precise enough to exclude other locations or failure to adequately describe an item or person to be seized will make the warrant invalid and the search illegal. Although the Fourth Amendment does not expressly state that a warrant will be issued by a neutral and detached magistrate, it is generally regarded to be inherent. One of the purposes of a warrant is to allow a neutral party to decide whether law enforcement has probable cause to conduct a search. It is an essential part of the search warrant process to have a detached party review the facts and issue a warrant only if probable cause is present. Failure to have a warrant issued by an impartial and unbiased party will invalidate the warrant and make the search illegal. The final requirement of the search warrant clause requires the warrant to be supported by an oath or affirmation. The oath or affirmation must be administered by the party issuing the warrant before testimony about probable cause. The Court has held that if the person supplying the probable cause recklessly disregards the truth or knowingly gives false evidence, the search warrant is invalid.

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Exceptions. The Supreme Court has found six instances in which a search is reasonable and valid without a warrant. When an officer arrests a suspect, the officer may conduct a search incident to an arrest. However, the Court ruled that only the person and the immediate area are subject to search in Chimel v. California (1969). The arrest must be lawful or the evidence may be deemed inadmissible under the exclusionary rule. Under the automobile exception established by Carroll v. United States (1925), if the police have probable cause to believe that an automobile contains evidence of a crime, fruit of a crime, or contraband, a search may be conducted without a warrant. If law enforcement observes evidence of a crime, and they have a legal right to be at the location, they may make a warrantless search under the plain view doctrine. The Court has recognized that a citizen may waive his or her Fourth Amendment rights by voluntarily and intelligently consenting to a search, allowing an officer to make a legal warrantless search. In Terry v. Ohio (1968), the Court concluded that officers may conduct a limited search of a person (by frisking him or her) for weapons if they have a reasonable suspicion that the person is armed and dangerous. The Court also held that when an officer is in hot pursuit, or where evidence may be destroyed or hidden away, or the evidence is a threat to public safety, an officer may make a warrantless search. Further Reading Ferdico, John N. Criminal Procedure for the Criminal Justice Professional. 3d ed. St. Paul, Minn.: West Publishing, 1985. Klotter, John C. Legal Guide for Police: Constitutional Issues. 5th ed. Cincinnati, Ohio: Anderson, 1999. O’Brien, David M. Constitutional Law and Politics: Civil Rights and Liberties. 3d ed. 2 vols. New York: W. W. Norton, 1997. Steven J. Dunker

SEDITION ACT OF 1798 Description: Federal statute enacted in 1798 that made interference or attempted interference with operations of the U.S. government a crime, criminalized oral and written utterances that tended to bring the government into disrepute, and liberalized the common law of seditious libel.

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Relevant amendment: First Significance: The Federalists intended the act to preserve control of the government and suppress the emerging Jeffersonian Republicans. Supreme Court justices, riding on circuit, upheld the act while it was in force, but twentieth century justices viewed the act as unconstitutional. The Sedition Act of 1798 had three substantive sections. Section 1, the least controversial, provided that opposition to governmental operations or antigovernment conspiracies could be punished by fines up to five thousand dollars and confinement between six months to five years. Section 2, the most controversial, codified the common law of seditious libel. It penalized certain kinds of political speech and permitted criminal prosecution for “knowingly and willingly” writing, publishing, or uttering statements that were “false, scandalous, and malicious” with the intent to defame the government, Congress, or president or to bring them into disrepute. Statements that turned people against the government or that promoted opposition to the nation’s laws were likewise actionable. Conviction allowed imprisonment for up to two years and a maximum fine of two thousand dollars. Section 3 liberalized seditious libel procedures. Under the common law, libel charges against the government were actionable if they tended to disturb the public peace or create animosities. Prosecutors had to prove publication and bad tendency to secure convictions. The common law allowed truth as a defense to private libel but not to libel aimed at the government or public officials. The reformed procedures provided that juries, not judges, decided issues of publication and bad tendency. Judges continued to charge juries and explain the law, but juries decided the facts and the law and judged a statement’s truth or falsity. These procedural reforms shifted decision making from judges to juries. Early Views. The Supreme Court never ruled directly on the Sedition Act, but from its enactment to its expiration in March, 1801, justices riding on circuit upheld the measure, some heartily. Chief Justice Oliver Ellsworth believed it limited the dangers that the national government confronted. Associate Justice Samuel Chase was the Court’s most ardent defender of the measure. In cases against James T. Callendar and Thomas Cooper, prominent Antifederalist writers, Chase was, in essence, more a prosecutor than a neutral justice. Chase’s overzealous involvement in Sedition

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The Supreme Court never ruled on the Sedition Act, but Chief Justice Oliver Ellsworth believed it served a useful purpose. (Collection of the Supreme Court of the United States)

Act cases was reflected in several charges in the articles of impeachment brought against him in 1804 by the House of Representatives. Justices William Cushing, William Paterson, and Bushrod Washington all warmly endorsed the act. Like Chase, they informed juries that it was constitutional and encouraged convictions. Jeffersonian Republicans (also known as Democratic-Republicans) opposed the act from the outset and fought vigorously for its repeal in 1799, but failed. They insisted that it violated the freedom of speech and press clauses of the First Amendment and secured resolutions to that effect from the legislatures of Virginia and Kentucky. After becoming president, Thomas Jefferson pardoned those who had been convicted under the act and remitted some fines, stating that the act was unconstitutional. In 1840 Congress agreed and repaid the remaining Federalist-imposed fines.

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Later Views. In a well-known dissent to Abrams v. United States (1919), Associate Justice Oliver Wendell Holmes wrote, “I had conceived that the United States through many years had shown its repentance for the Sedition Act.” Louis D. Brandeis joined his dissent. Some thirty years later, in a dissenting opinion in Beauharnais v. Illinois (1952), Associate Justice Robert H. Jackson, chief prosecutor in the Nuremberg War Crimes trial, observed that the enactment of the Sedition Act had come to be viewed as “a breach of the First Amendment.” Continuing, he wrote that “even in the absence of judicial condemnation, the political disapproval of the Sedition Act was so emphatic and sustained that federal prosecution of the press ceased for a century.” The Sedition Act met considerable condemnation in the latter half of the twentieth century. In New York Times Co. v. Sullivan (1964), Justice William J. Brennan, Jr., noted that “although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history.” Associate Justices Hugo L. Black and William O. Douglas concurred in Brennan’s judgment that the court of history condemned the act. They noted that it had “an ignominious end and by common consent has generally been treated as having been a wholly unjustifiable and much to be regretted violation of the First Amendment.” In a concurring opinion in Garrison v. Louisiana (1964), Douglas and Black quoted Holmes’s 1919 observation that the nation had repented for having passed the act. A decade later, they reiterated their contempt for the 1798 measure in Gertz v. Robert Welch (1974), noting that it was a congressional attempt to “muzzle” the First Amendment, “a regrettable legislative exercise plainly in violation of the First Amendment.” Freedom Versus Unity. In Sullivan, Brennan summarized not only the modern view of the act but also the classic reason for conflicting views about its constitutionality. Brennan wrote, “Thus we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” Although Brennan severely criticized the act and praised Jefferson for pardoning those sentenced under it, his method of interpretation comports well with that of both the Federalists and Democratic-Republicans in the early national era. National commitments were central to Brennan and those who supported or opposed the act during its short life. Expressive

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freedoms were not ends in themselves but served broad national commitments. When those commitments changed, interpretations of the freedom of speech and press clauses changed. The Federalists and Democratic-Republicans had different commitments and dramatically different notions about speech and press functions. Both parties had a keen pride of accomplishment in winning the American Revolution and securing the Constitution. However, each viewed itself as the true revolutionary heir, and in the 1790’s, they accused each other of deliberately squandering dearly won freedoms embodied in the Constitution. Each came perilously close to thinking of the other as an illegitimate faction, animated by a party spirit that threatened to undermine the benefits that the Revolution had secured. It seemed clear that if the other party threatened the nation, it should be suppressed. They agreed that limitations on expressive freedoms were instrumental to preserving the Revolution and protecting the Constitution but split decisively over which level of government was responsible for protecting the nation from illegitimate factions. The Federalists passed the politically inspired Sedition Act in an attempt to suppress the Democratic-Republicans. Federalist prosecutors targeted only Democratic-Republican editors, newspapers, and party leaders, enforcing the act most vigorously just before the election of 1800 in order to dampen attacks by the opposition party and to maintain control of the national government. In all, twenty-four or twenty-five individuals were arrested for violating the act. At least fifteen were indicted, and of the eleven who went to trial, ten were convicted. Because Supreme Court justices accepted the Federalist position, they upheld the act’s constitutionality. In the early nineteenth century, after Jefferson became president, Democratic-Republicans—sometimes with Jefferson’s approval, if not urging—prosecuted Federalist editors. Like their Federalist counterparts, Democratic-Republican prosecutors targeted political speech. Neither party tried to curb completely the other’s speech. Prosecutions were intermittent, inconsistent, and unpredictable. Each party used law to create a legal environment that forced the other to be self-censoring; if selfcensorship was glaringly ineffective, prosecutors might spring into action. The Two-Party System. Americans of the early national era believed they had good but fragile institutions, worthy of careful nurturing. Federalists

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and Democratic-Republicans felt obligated to shield the nation from unwarranted partisan attacks and to preserve revolutionary gains by limiting the other party’s expressive freedom. In essence, the two parties bitterly contested the legitimacy of competing parties. They agreed that the other’s licentious speech needed curbing but split over whether the national or state governments should impose the limits. In Dennis v. United States (1951), Associate Justice Felix Frankfurter noted that the central issue in the case was federalism rather than free speech or press. Jefferson, he wrote, had not condemned the Sedition Act because it limited political speech but because he thought states, not Congress, had “the right to enforce restrictions on speech.” By the end of the 1820’s Americans believed that competing parties were a logical analog to the Constitution; parties gave an additional method of checking power. When one party put forth a program or set of policies, the competing party sponsored an alternative and thus acted as a check on the first party. As the party system gained legitimacy, the need for restraints on speech and press, such as those in the Sedition Act, disappeared. In the twentieth century, the Court consistently condemned the Sedition Act; however, it sustained restrictions on expressive freedoms when, as the Federalists believed in the 1790’s, a good society with decent institutions was under unwarranted assault. Further Reading James M. Smith’s Freedom’s Fetters: The Alien and Sedition Laws and American Civil Liberties (Ithaca, N.Y.: Cornell University Press, 1956), which has extensive bibliographic notes, remains the standard treatment of the Sedition Act. For a somewhat simpler treatment, see John C. Miller’s Crisis in Freedom: The Alien and Sedition Acts (Boston: Little, Brown, 1951). Leonard W. Levy’s Freedom of Speech and Press in Early American History (Cambridge, Mass.: Harvard University Press, 1960) and Emergence of a Free Press (New York: Oxford University Press, 1985) put the Sedition Act in its broader constitutional and legal context. John D. Stevens’s “Congressional History of the 1798 Sedition Law,” Journalism Quarterly 13 (Summer, 1966): 247-256 provides a useful introduction to the congressional history of the act and Federalist prosecutions under it. Walter Berns’s “Freedom of the Press and the Alien and Sedition Laws: A Reappraisal,” Supreme Court Review (1970): 109-159 examines the relationship between the Sedition Act, Federalism, and slavery. Richard Hofstadter’s The Idea of a Party System: The Rise of Legitimate Opposition in the United States, 1780-1840 (Berkeley:

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University of California Press, 1970) considers the broader political and ideological background from which the act emerged. Gregg Costa’s “John Marshall, the Sedition Act, and Free Speech in the Early Republic,” Texas Law Review 77 (1999): 1011-1047 analyzes the prominent Federalist and future chief justice who opposed the Sedition Act. Lester G. Lindley

SEDITIOUS LIBEL Description: The criminal act of undermining government by publishing criticism of it or of public officials Relevant amendment: First Significance: Reaction against the concept of seditious libel contributed significantly to the growth of a broader concept of freedom of the press Part of the common-law heritage of American justice, the crime of seditious libel gave way to a more libertarian view of the press’s role in American politics. Origins and Early History. The concept of seditious libel developed as part of English common law and was transplanted to the American colonies. Primarily concerned with the preservation of government, it viewed criticism that tended to lower the respect of the people for government as a criminal “assault.” Under the doctrine of seditious libel, it did not matter if the offending words were true; indeed, since damaging words based on truth were likely to be more effective, the law held that “the greater the truth, the greater the libel.” In seditious libel trials, the role of the jury was limited to determining the fact of publication. The judge determined whether the words were libelous. Prosecutions for seditious libel were relatively rare in colonial America, though the concept did give rise to one of the eighteenth century’s most famous trials. In 1735, John Peter Zenger, printer of the New York Weekly Journal, was charged with seditious libel for his criticisms of the colony’s governor. Though Zenger admitted that he had published the offending material, he maintained that it was true and that truth was an adequate defense. Despite the judge’s determination that his words were libelous,

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the jury refused to convict Zenger and found him not guilty. His resultant popularity may well have discouraged other prosecutions. Seditious Libel and Partisan Politics. Seditious libel was still a crime when the Bill of Rights was adopted in 1791, and contemporary opinion seems to have held that the First Amendment’s protection of freedom of the press did not eliminate it. Freedom of the press was held primarily to mean that there should be no censorship before publication, or “prior restraint.” After publication, authors and printers could be held accountable for what was published. In the heightened tensions of the nation’s first party system in the 1790’s, the Federalists and Jeffersonian Republicans criticized each other in the press in terms that ranged from the vigorous to the scurrilous. Fearing that their opponents threatened the very stability of the government, the Federalists persuaded Congress to pass the Sedition Act of 1798. This act made it a crime to bring the president or Congress into disrepute. It also modified the law of seditious libel to allow truth as a defense and to permit juries to determine whether a publication was libelous. The act was employed in a very partisan manner: All those prosecuted under it were Republicans; all the judges were Federalists. Thomas Jefferson and his followers argued that the law was unconstitutional. The act expired in 1800, and after Jefferson’s election to the presidency in 1800, Congress repaid the fines of those convicted under the act. The Sedition Act created a strongly negative reaction in public opinion. While the act never came before the Supreme Court and seditious libel was never formally repudiated, the increasingly democratic nature of American politics ensured that any government initiat- Associate Justice Brockholst Livingston, who joined the Supreme Court in 1807, had been ing a seditious libel prosecution a strong supporter of state prosecutions of would be subject to ridicule. For seditious libel while he was on the New York the next century little was heard Supreme Court. (Collection of the Supreme Court of the United States) of the crime.

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Later History of Seditious Libel. Though the common-law crime of seditious libel was seldom used as the basis of prosecutions, the attitude that the federal government needed protection from the writings of subversives surfaced periodically in the twentieth century, particularly during times of crisis. During World War I, the Espionage Act of 1917 made a variety of forms of antigovernment expression illegal, particularly after it was amended by a new sedition act in 1918. During the Cold War, the Smith Act of 1940 was used to prosecute the leaders of the American Communist Party partly on the grounds that the party’s publications had seditious purposes. As late as the 1960’s, efforts were made by opponents of the Civil Rights movement to use the law of libel to silence their opponents in the press. The Supreme Court’s decision in New York Times Co. v. Sullivan (1964), however, established the principal that political figures had to prove “actual malice” rather than mere inaccuracy to sustain a charge of libel. Though seditious libel has never been declared a dead letter, the absence of its use and the relative rarity of other prosecutions utilizing the concept of sedition are a mirror of the extent to which American government has come to accept the view that vigorous public debate, including strong criticism of the government and its officials, is necessary to the existence of a free society. William C. Lowe

SELF-INCRIMINATION, IMMUNITY AGAINST Description: One’s right, before any compulsory forum, to resist testifying on any matter that might ensnare one in a criminal investigation or aid in one’s own prosecution. Relevant amendment: Fifth Significance: Long regarded as the foundation of an accusatory system of justice, the immunity from self-incrimination imposes on the state the burden of presenting at trial proof of guilt without the participation of the accused. The Supreme Court’s extension of this right into the pretrial stages of the criminal process has been controversial.

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The right of the accused to refuse to testify against himself or herself gained acceptance in English common law after the seventeenth century, a period of strife that saw frequent reliance on the compulsory oath as an instrument of political and religious persecution. So venerated was this right in North America that it was included in the Fifth Amendment to the U.S. Constitution, which provided that “No person . . . shall be compelled in any criminal case to be a witness against himself.” Because of its prominence in movies and television, it remains the defendants’ right most identified in the popular mind. Although the Constitution locates the right “in any criminal case,” the Supreme Court extended it to any forum in which the individual might be compelled to testify, such as grand juries or legislative investigations. It is, however, limited to subjects on which the individual might be vulnerable to prosecution and therefore does not cover testimony that is merely humiliating or that exposes the witness to civil suit. Additionally, the right is limited to testimony and does not bar the compulsory production of nontestimonial evidence, such as fingerprints, photographs, blood samples, appearance in a lineup, or even providing voice exemplars. It is only the suspect’s words that may not be used in evidence for his or her own undoing. The right can be asserted only on behalf of oneself and does not bar compulsory testimony against a relative or accomplice. Properly asserted, the right is absolute, but it can be circumvented by a grant of immunity from prosecution, on the theory that such immunity offers protection coextensive with the right. The right is frequently exercised when defendants decline to take the witness stand to avoid cross-examination. Understandably, this is a risky right to assert because juries might infer guilt from silence. Pretrial Confessions. Assertion of immunity from self-incrimination at trial would be a hollow exercise if the suspect were compelled to confess to a criminal charge before trial and the confession later read into evidence by the prosecutor at trial. The National Commission on Law Observance and Enforcement, commonly known as the Wickersham Commission, in 1931 documented widespread use of physical brutality by police departments to extract such confessions, especially from members of groups outside the mainstream of society. In Brown v. Mississippi (1936), the Supreme Court overturned the capital murder convictions of three African American defendants resting solely on confessions that had been extracted after brutal whippings at

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the hands of police. Aside from the inherent unreliability of such confessions, the Court sought to discourage such behavior on the part of the police. In Chambers v. Florida (1940), the Court formulated the voluntariness rule, requiring trial judges to assess the full circumstances surrounding pretrial confessions—not only allegations of physical brutality—to ensure that the suspects had voluntarily confessed to the charges against them. Such voluntariness was undermined by any circumstances tending to overbear on the suspect’s free will, including various psychological “third degree” tactics. These cases rested on the due process clause of the Fourteenth Amendment but were subsumed under the right against selfincrimination in Malloy v. Hogan (1964). The most notorious of this line of decisions was Miranda v. Arizona (1966). Experience with the voluntariness rule had revealed reluctance on the part of trial judges to bar confessions extracted by questionable techniques. Widespread complaints, especially by minorities, about police tactics in stationhouse backrooms and a growing egalitarian ethos on the Court led to replacement of the voluntariness rule. The Court ruled that prosecutors were barred from using any incriminating statements made by a suspect before trial unless procedures were already in place to ensure that confessions were based solely on the free will of the defendant. The Court did not specify what these procedures might be, but until the states developed effective alternatives, police would be required to read suspects the Miranda rights before any custodial interrogation. Failure to warn suspects of their right to remain silent and to inform them that statements they made might be used as evidence against them and that they had a right to counsel would result in the exclusion of any incriminating statements from trial. Although more than thirty years of empirical research has found Miranda’s impact on confessions to be negligible, the decision quickly became a lightning rod for attacks on the Court. Critics, such as presidential candidate Richard M. Nixon, accused the Court of favoring defendants at the expense of legitimate law enforcement techniques. Since the 1970’s the Court has tended to restrict the application of Miranda. In Harris v. New York (1971), the Court held that statements made in the absence of Miranda warnings, while barred from direct evidence, could be used for cross-examination if the accused took the witness stand. In New York v. Quarles (1984), the Court permitted the use of statements obtained by police if motivated by reasonable concerns for public safety. Other decisions have turned primarily on questions of when the suspect was under custody or what constituted an interrogation.

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Guilty Pleas. In court, the immunity against self-incrimination is a “fighting right,” meaning it does not become effective unless specifically asserted by the accused. It can be waived, however, and usually is. Over 90 percent of all felony convictions in the United States result from guilty pleas, usually pursuant to plea bargains. The effect of a guilty plea is the waiver of all trial and pretrial rights, including relief from selfincrimination. Trial judges are obliged to examine the guilty plea on record to verify that it is offered knowingly and intelligently, but this is pro forma. Usually, the guilty plea has been arranged by counsel. Nevertheless, the Court has come a long way from Twining v. New Jersey (1908), in which it held the right against self-incrimination not fundamental to a fair trail, as required by the Fourteenth Amendment, or Palko v. Connecticut (1937), in which the right against self-incrimination was pronounced not essential to justice. Whatever might be the practice of other nations, the immunity against self-incrimination is a fundamental component of U.S. law. Further Reading Berger, Mark. Taking the Fifth. Lexington, Mass.: D.C. Heath, 1980. Bodenhamer, David J. Fair Trial: Rights of the Accused in American History. New York: Oxford University Press, 1992. Helmholtz, R. H., Charles M. Gray, John H. Langbein, Eben Moglin, Hesury M. Smith, and Albert W. Altschuler. The Privilege Against SelfIncrimination: Its Origin and Development. Chicago: University of Chicago Press, 1997. Levy, Leonard W. Against the Law: The Nixon Court and Criminal Justice. New York: Harper & Row, 1974. _____. Origins of the Fifth Amendment. New York: Oxford University Press, 1968. John C. Hughes

SILVER PLATTER DOCTRINE Description: The exception to the exclusionary rule that permitted federal prosecutors to introduce at trial evidence obtained illegally by state law enforcement agents. Relevant amendment: Fourth

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Significance: Until a 1960 Supreme Court ruling, federal prosecutors bypassed the requirements of the Fourth Amendment by using the silver platter doctrine to obtain admissible evidence against suspected criminals. In Weeks v. United States (1914), the Supreme Court articulated what became known as the exclusionary rule : Evidence obtained in violation of the Fourth Amendment was inadmissible in federal court. This decision, however, did not apply to state courts. In fact, thirty-five years later, in Wolf v. Colorado (1949), the Court, while incorporating the Fourth Amendment into the Fourteenth Amendment, specifically rejected the notion that the exclusionary rule should be binding on the states. As a result, states were free to adopt or ignore the exclusionary rule. This double standard gave rise to the silver platter doctrine. State law enforcement agents, often at the request of federal officers, conducted illegal seizures. The evidence obtained was then served up to federal authorities on a “silver platter” and was admissible in federal court because federal officers had not participated in its seizure. In Elkins v. United States (1960), the Court abandoned this exception, claiming that it undermined federalism. In Mapp v. Ohio (1961), the Court extended the exclusionary rule to state criminal prosecutions. Richard A. Glenn

SMITH ACT Description: Officially known as the Alien Registration Act, the Smith Act in 1949 required aliens to register with the U.S. government and made it a crime to advocate overthrowing American governments by force Relevant amendment: First Significance: The Smith Act became the U.S. government’s primary legal tool for attacking the American Communist Party during the early years of the Cold War As World War II approached, fears of foreign-inspired subversive activity grew in the United States. Concerned especially that the buildup of American defenses might be threatened by sabotage, Congress reacted by passing the Alien Registration Act, which came to be more generally

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known as the Smith Act for its major proponent, Congressman Howard W. Smith of Virginia. The Smith Act had two major thrusts. The first sought greater control over aliens living in the United States. Under the act, aliens had to register with the government, be fingerprinted, carry identity cards, and report yearly. (The registration requirement was dropped in 1982.) Those involved in what were regarded as subversive activities could be deported. The other major provisions of the act were directed at disloyal activities. These made it a crime for anyone to advocate the overthrow of the federal government or other American governments by force or violence, to enter a conspiracy to advocate such a course of action, or to become a knowing member of such a group. Penalties for those convicted under the act included a ten-thousand-dollar fine, up to ten years in prison, or both. Though a wartime measure, the Smith Act was used relatively little during World War II. As postwar tension between the United States and the Soviet Union developed into the Cold War, however, the act came to the fore as concerns about the possibility of Communist subversion in the United States rose. By the late 1940’s, there were increasing concerns about the activities of members of the American Communist Party and sympathetic groups, and charges of communist penetration of the government were increasingly made. The administration of President Harry S. Truman was charged with being slow to meet the communist challenge at home. Partly in response, the Truman administration used the Smith Act to attack the party’s organization. In 1948 Eugene Dennis and ten other communist leaders were arrested and charged under the act. They were convicted and sentenced to prison. They appealed, arguing that the Smith Act was an unconstitutional violation of the First Amendment’s protection of free expression. Their appeal was denied by the Supreme Court in 1951. Use of the Smith Act continued during the 1950’s. Altogether, more than 140 arrests were made under the act. Later Supreme Court decisions in Yates v. United States (1957) and Brandenburg v. Ohio (1969) broadened the extent of expression protected by the First Amendment, but the Smith Act itself continued to be held as constitutional.

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SPEECH AND PRESS, FREEDOM OF Description: Constitutional rights to speak freely and to publish one’s views, free of government censorship. Relevant amendment: First Significance: Viewed by most scholars and citizens alike as the very foundation of all other constitutional rights, freedom of speech and freedom of the press are American ideals, indispensable to the democracy, and the subject of many Supreme Court cases. When most Americans consider the U.S. Constitution, the Bill of Rights, or the Supreme Court, inevitably they think about freedom of speech and freedom of the press. These twin freedoms, expressly guaranteed in the First Amendment, represent the quintessential liberties on which the United States was founded. Asked to enumerate the rights protected by the Constitution, the vast majority of Americans would readily name free speech and free press. Asked to articulate what sets the United States apart from all other nations, most Americans would identify these same freedoms. The Struggle to Protect Freedom of Speech and Press. Respect and pride for freedom of speech and freedom of the press are sincere and heartfelt—until tested in the harsh reality of the tumultuous and diverse culture, in which a wide array of political, religious, social, economic, ideological, racial, ethnic, and geographical constituencies are pitted against one another. In that crucible, pious fidelity to “free speech” and “free press” too often gives way to the inevitable qualification. What inevitably follows is an ever-increasing list of exceptions to freedom of speech and freedom of the press, including not only the small group of exceptions recognized in the law, such as obscenity, libel, fighting words, false advertising, and criminal solicitation, but also newly proposed exceptions, such as hate speech, sexual harassment, offensive or sacrilegious art, and sexually explicit yet nonobscene photographs, magazines, videos, and Internet images. When it comes to freedom of the press, the general public and the juries on which they serve sometimes ignore the First Amendment and hold books, films, and television shows financially liable for the acts of disturbed individuals and social miscreants who commit suicide, violent

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crimes, or general mayhem allegedly “inspired” by what they read or saw in a film or on television. It is in this contentious atmosphere that the Supreme Court continues to serve its historic role in interpreting the meaning, scope, and limitations of freedom of speech and freedom of the press. The Meaning of Freedom of Speech and Press. Generally speaking, “freedom of speech” refers to the right of individuals to freely express themselves, without fear of government restrictions. “Freedom of the press” refers more to the right of the publishers of newspapers, magazines, and books; the writers and producers of motion pictures and television productions; and the creators and distributors of CDs to sell and distribute these materials, free of government censorship. Beyond this general distinction, for constitutional purposes, scholarly analysis and Supreme Court decisions often merge the two concepts under the rubric “freedom of expression,” frequently applying principles developed in one area to the other. In free press cases, civil libertarians and attorneys will readily cite precedents that advance constitutional protections in free speech cases, and vice versa. Although the First Amendment speaks in absolute and unqualified terms (“Congress shall make no law abridging . . . freedom of speech or of the press”), the question has always been what is meant by “freedom of speech” or “freedom of the press.” There is a school of thought, to which only two justices, Hugo L. Black and William O. Douglas, adhered, that holds that with respect to speech and the press, the First Amendment is absolute; it means what it says: “Congress shall make no law . . . ”—not “some laws” or “almost no laws,” but “no law.” First Amendment absolutists simply cite the language of the First Amendment and accept no substitutes. The other school of thought, to which all other justices have subscribed, believes that at the time the First Amendment was ratified, there were certain limited exceptions to freedom of speech and freedom of the press, which were already part of these concepts when they were included in the First Amendment. Thus, for example, in America in 1791, there were libel laws under which people could be punished for what they wrote or said about someone else if it was false and defamatory. Likewise, there were obscenity laws under which publishers could be fined or jailed for selling books or pictures deemed obscene under prevailing standards. Given the existence of these laws at the time the First Amendment was adopted and ratified, the majority view rejects the absolutist ap-

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proach in favor of an interpretation that affords the broadest sweep of constitutional protection for all subject matter and forms of communications, subject only to limited exceptions. Consequently, the Court has held that the First Amendment protects motion pictures, radio, television, cable, recordings and most recently the Internet, regardless of the fact that none of this technology existed when the First Amendment was written. No justice seriously argues that the First Amendment is frozen in the eighteenth century in terms of the forms of communications that existed at that time. Instead, the Court takes a functional view of freedom of speech and freedom of the press to encompass any form of communication that provides information much as books and newspapers did in 1791. Theories of Freedom of Expression. A variety of theories have been offered for the protection of freedom of expression. One is that truth is best discovered by the free exchange of ideas. In his seminal 1644 work Areopagitica, John Milton confidently asked that if Truth and falsehood grappled, “Who ever knew Truth put to the worse, in a free and open encounter?” In 1919 Justice Oliver Wendell Holmes wrote that “the best test of truth is the power of the thought to get itself accepted in the competition of the market.” No metaphor has proved more lasting in the defense of free expression than the “marketplace of ideas.” Another important rationale upholding freedom of expression is based on the principles of human dignity and autonomy. The opportunity to freely express oneself develops inner satisfaction and individual fulfillment. In this view, freedom of expression is worthy of constitutional protection as a step toward the realization of self-identity or what Justice Thurgood Marshall called “a spirit that demands self-expression.” This rationale has nothing to do with the search for truth or the advancement of self-government. Instead, it justifies free expression based purely on its benefit to the individual. At the other end of the spectrum is a rationale based on the common good rather than the good of the individual. Under this view, freedom of expression is indispensable to the progress of self-governance in a democratic society. For citizens to participate fully in their own government they need to exchange information and express their opinions on pending legislation, candidates, and public policy issues. Only open and unfettered communication, free of the distortions produced by government censorship, ensures the viability of democracy.

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The final rationale supporting freedom of expression is closely related to the advancement of self-government but focuses on the value of dissent. Whereas the theory of self-governance looks at the role of free expression among those working within the system, the dissent rationale recognizes the value of those who work outside the system. Sometimes referred to as the “loyal opposition,” dissident speech is protected because of the realization that by allowing opponents of the established order to peacefully and freely express themselves, the risk of violent opposition is reduced and hopefully eliminated. Tolerating, or even encouraging, dissent serves as a “safety value” preventing the political system from getting “overheated.” Majority Rule and Minority Rights. Disputes over freedom of expression generally pit the rule of the majority against the rights of the minority. The question is whether the expression of ideas deemed dangerous to the purpose of ensuring order, morality, loyalty, or some other important interest valued by society at large should be suppressed. Examples of these conflicts abound through the annals of the Supreme Court. In the early 1970’s, American Nazis announced their intent to conduct a march through Skokie, Illinois, a suburb of Chicago, inhabited by a large number of Jewish families, including survivors of the Holocaust. The march seemed purposely designed to deeply offend the Jewish community in Skokie. The city officials took various steps to block the march, but the Nazis, represented by the American Civil Liberties Union (ACLU), went to court, claiming they had a right to express their views, regardless of whether they gave offense. The ACLU was attacked for representing such despicable bigots and reportedly lost thirty thousand members. Nevertheless, the ACLU stood by the principle that regardless of whether it disagreed with the Nazis, it would defend their right to speak and march. Eventually, the federal courts agreed that the First Amendment protected the Nazis’ freedom of expression. Ironically, having won the right to march, the Nazis chose not to hold the event. Another issue is whether the government can deny funding to artists because of the controversial or offensive nature of their work. This issue was squarely presented in 1991 when Congress imposed content restrictions on the grants awarded by the National Endowment for the Arts (NEA), a federal agency established in 1965 to further the progress of the arts. Congressional leaders claimed that artists could create all the controversial art they wanted, they simply had no constitutional right to de-

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mand that the government pay for it. Civil libertarians countered that once the government decided to provide funds for artists through the NEA, it could not condition those funds on whether the government agreed or disagreed with the artistic, political, religious, social, or other messages communicated by the art. Eventually, the courts agreed with the artists and struck down the congressional restrictions. The Supreme Court held that the NEA could establish goals encouraging “decency” and respect for diverse American values but could not reject specific works of art based on their controversial content. Every advance in technology has renewed the battle over freedom of expression. By the 1990’s, the conflict was centering on the Internet and the revolutionary Worldwide Web. In 1996 Congress passed the Communications Decency Act (CDA) making it a crime to communicate “indecent” material to persons under eighteen years old. The ACLU promptly challenged the CDA, first before a federal three-judge panel and later before the Supreme Court. The Court had never ruled on a case involving freedom of expression on the Internet. The CDA case squarely presented the question of whether the Internet would enjoy the same wide-open, robust constitutional protection accorded to books, newspapers, and magazines or the more restricted, narrow protection granted to television and radio. In other words, the Court had to decide whether the print model or the broadcast model would apply to the Internet. In 1998 the Supreme Court established the Internet model. The Court found that the Internet was a vast marketplace of ideas entitled to the widest possible constitutional protection. With respect to the CDA, the Court held that the adult population could not be reduced to what is acceptable for children. In the absence of effective age verification technology, the Court found that the responsibility for protecting children from indecent material on the Internet rested with their parents, not the government. Even before the Internet, sexually explicit speech in books, art, films, and home videos has proven to be a perplexing subject for public debate and Court review. No other area of First Amendment litigation has prompted such heated and persistent controversy, pitting libertines against moralists. By 1968 the Court had adopted a three-part test for defining obscenity: sexually explicit material could not be banned unless it appealed to a prurient, or morbid, interest in sex; exceeded contemporary community standards; and was utterly without redeeming social value.

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In 1973, in the case of Miller v. California, the Court recast the third prong (in an apparent effort to expand the scope of unprotected obscenity). Under Miller, material could be banned if it lacked “serious literary, artistic, political, or scientific value.” Although one leading First Amendment scholar optimistically entitled his 1969 book The End of Obscenity, federal and state governments continue to prosecute material deemed obscene, while at the same time, the adult video business is thriving. Given the power and mystery of sex, on one hand, and the tendency of legislators to pass laws they believe are necessary to protect people from themselves on the other, the controversy over obscenity is unlikely to end in the near future. The Court held that generally laws that punish defamation do not violate the First Amendment, except when it comes to public officials and public figures. Defamation, which encompasses libel (the written word, as well as radio and television), is defined as a false statement of fact that holds someone up to shame and humiliation. The defamation of a private person implicates little or no First Amendment concerns. However, allowing an individual or a publisher to be punished for attacking an elected official or a celebrity or famous person tends to suppress the sort of public criticism that is at the heart of the First Amendment. In 1964 the Court faced a historic dispute that presented these important issues in the case of New York Times Co. v. Sullivan. At the height of the Civil Rights movement, a group called the Committee to Defend Martin Luther King took out an ad in The New York Times condemning racism and the actions of the officials in Montgomery, Alabama. One of the officials, L. B. Sullivan, sued for libel and won a $500,000 judgment against the Times. The Court overturned the verdict and established powerful protection for freedom of the press. In a groundbreaking opinion by Justice William J. Brennan, Jr., the Court held that the freedom to criticize the government was so important, and the possibility that journalists might make innocent mistakes was so great, that defamation suits against public officials could not go forward unless the official proved that the defamatory statement was made with what the Court called “actual malice,” that is, knowledge of falsity or reckless disregard for the truth. Nothing less, according to Justice Brennan’s eloquent opinion, would serve the “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” Freedom of speech encompasses not only what is spoken and written

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but also actions that are intended to communicate a message, such as burning a draft card to protest a war or burning a U.S. flag to express disagreement with government policy. Symbolic speech, as these expressive activities are called, is entitled to constitutional protection when it does not involve violence or destruction of private property, because it conveys, often in a most dramatic fashion, political, social, and other ideas. In 1989, in Texas v. Johnson, Justice Brennan, speaking for the majority of the Court, characterized as “a bedrock principle underlying the First Amendment” that “the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Justice Brennan suggested that there was “no more appropriate response to burning a flag than waving one’s own.” One of the greatest threats to freedom of expression is prior restraint. This term refers to any effort by government to suppress speech even before it is published. The history of England is stained by examples of the Crown preventing books and newspapers from being printed. Indeed, the origin of modern copyright laws was a system of royal licensing with permission bestowed only on those publishers favored by the rulers. Many scholars argue that the essential purpose of the First Amendment was to prohibit prior restraint. If so, it has fulfilled that goal admirably because the Court has never upheld a prior restraint. In the landmark case involving the Pentagon Papers, a series of secret U.S. Defense Department studies on the Vietnam War, the Court rejected the request of the administration of Richard M. Nixon to enjoin The New York Times and The Washington Post from publishing the controversial reports. What the king of England could have done with a stroke of a pen, the First Amendment prohibited the U.S. government from doing. Speech Codes. Although American campuses in the 1960’s were a hotbed of freedom and openness, by the 1990’s the antithesis emerged at many colleges and universities in the form of speech codes. These campus regulations prohibited, usually in broad and ambiguous terms, speech that was offensive to women and minorities. However, from the standpoint of freedom of expression, campus speech codes posed a serious threat. With little precedent and even less guidance, neither students nor faculty members could tell what sort of statements could get them in trouble. Self-censorship out of fear of punishment is often referred to as the

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“chilling effect” caused by government regulation of speech. Because most people will steer clear of punishment, they will refrain from making statements or publishing material that is constitutionally protected for fear they may run afoul of the government. When this happens, freedom of expression suffers. This is one of the primary reasons that laws or regulations affecting speech must be written with great certainty and cannot be vague or ambiguous. Campus speech codes were generally far from clear and certain. They usually spoke of speech that was “offensive,” “degrading” or “hostile,” terms that were highly subjective and lacked any objective definition. Consequently, the courts have consistently struck down campus speech codes when they were challenged on First Amendment grounds. Generally, the courts found that controversial ideas were at risk of being censored in the name of combating racism, sexism, and bigotry. Justice Oliver Wendell Holmes wrote that the true purpose of the First Amendment was to protect the ideas Americans hate. Justice Louis D. Brandeis believed that the answer to offensive speech was more speech, not less. In other words, in a democratic society, committed to freedom of expression, the remedy to social evils is free and open debate. Further Reading Louis E. Ingelhart’s Press and Speech Freedoms in the World, from Antiquity Until 1998: A Chronology (Westport, Conn.: Greenwood Press, 1998) takes an international approach, covering the concept of freedom of speech and press from ancient times until the modern period. Margaret A. Blanchard’s Revolutionary Sparks: Freedom of Expression in Modern America (New York: Oxford University Press, 1992) also takes a historical approach, covering the concept from the beginning to the end of the twentieth century. The First Freedom Today: Critical Issues Relating to Censorship and to Intellectual Freedom (Chicago: American Library Association, 1984), edited by Robert B. Downs and Ralph E. McCoy, also covers the history of the concept but provides numerous essays examining the modern issues and controversies involving the First Amendment rights. Two books concentrating on the origin and meaning of the First Amendment are The First Amendment: The Legacy of George Mason (London: Associated University Presses, 1985), edited by T. Daniel Shumate, and George Anastaplo’s The Constitutionalist: Notes on the First Amendment (Dallas: Southern Methodist University Press). Stephen F. Rohde

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SPEEDY TRIAL Description: Presentation of an accused person for trial within a reasonable amount of time to expedite justice and to prevent defendants from languishing in jail indefinitely. Relevant amendment: Sixth Significance: The Sixth Amendment to the U.S. Constitution ensures criminal defendants the right to a speedy trial but does not set a specific time limit between arrest and trial. The Supreme Court did not attempt to set specific guidelines for acceptable delays, preferring to examine the facts of each individual case. The guarantee of a speedy trial for persons accused of criminal wrongdoing is a concept rooted in English common law. Although the Sixth Amendment to the U.S. Constitution guarantees the right to a speedy trial, it does not specify what length of time is appropriate. The Supreme Court has refrained from clearly separating permissible trial delays from unconstitutional delays, preferring instead to evaluate delays on a caseby-case basis according to a balancing approach. Under this approach, developed in Barker v. Wingo (1972), the Court considers the length and reason for the delay as well as whether the delay was to the defendant’s advantage or disadvantage. The Court left the task of setting more definite time limits to state and federal legislatures. In 1974 Congress passed the Speedy Trial Act, which set a normal deadline of one hundred days between arrest and trial in federal courts; many states later passed similar laws. Although the guarantee of speedy trial is derived from the Constitution, Court decisions interpreting the due process and equal protection clauses of the Fourteenth Amendment have provided for speedy trials in state criminal proceedings; for example, in Klopfer v. North Carolina (1967), the Court ruled unconstitutional a North Carolina law allowing the indefinite postponement of a trial. It also ruled in Strunk v. United States (1973) that dismissal of charges was the only acceptable remedy for violation of a defendant’s right to speedy trial. Michael H. Burchett

The Issues

States’ rights / 343

STATES’ RIGHTS Description: Constitutional argument that state governments possess sovereignty, autonomous governing power that approximates the authority and status of the federal government. Relevant amendment: Tenth Significance: After the Articles of Confederation went into effect in 1781, the states began to assert a degree of independence from the federal government. The Supreme Court’s interpretation of states’ rights was not consistent, although policy making in the United States tended to be more local and diverse and less national and uniform. The states’ rights argument dates back to the founding of the United States and the first national constitution, the Articles of Confederation. The articles were drafted by delegates of the “states in Congress assembled” and explicitly provided for state sovereignty: “Each state retains its sovereignty, freedom, and independence.” The U.S. Constitution of 1789, however, makes no mention of sovereignty, implies popular sovereignty in the Preamble’s invocation of “We the people,” and explicitly declares national supremacy in Article VI: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land . . . , any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” The first Congress in 1789 proposed what came to be the Tenth Amendment in order to pacify the antifederalists, the states’ rights advocates who opposed the Constitution of 1789. This amendment’s language still serves as the principal constitutional grounds for states’ rights arguments: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Determining States’ Rights. For two hundred years, constitutional questions have arisen when the national government’s delegated powers and states’ reserved powers have come into actual or potential conflict. Peaceful resolution of these disagreements required a legitimate and authoritative decision maker, and the candidates were the involved state or the national government (Congress or the Supreme Court). With few exceptions, the Court emerged as the final arbiter of states’ rights in conflict with federal law. For example, in McCulloch v. Maryland (1819), the great

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nationalist, Chief Justice John Marshall, in the opinion for the Court, wrote that the supremacy clause of Article VI prevented Maryland from taxing the Second Bank of the United States. Two years later in Cohens v. Virginia (1821), the Court held that it and not the highest state court had final say on the meaning of the U.S. Constitution in a case involving a state conviction for selling federal lottery tickets. Similarly in Cooper v. Aaron (1958), the Court said in a school desegregation case that it, not Arkansas officials, was “supreme in the exposition of the law of the Constitution.” Some exceptions to the Court’s primacy in determining the boundaries of states’ rights and federal authority have been the Union’s military dominance in the Civil War, Congress’s authority to decide when general federal regulations apply to the states, and state supreme courts’ decision-making power over matters of purely state law. Rejection of Radical States’ Rights. John C. Calhoun, an American statesman and author who died in 1850, provided the nation’s most systematic and philosophical treatment of states’ rights. His theory of the “concurrent majority” posited that no action of the national government would be legitimate unless each separate interest represented in Congress would forgo its inherent right of veto and assent to the policy. States’ rights corollaries of this theory were that the states are sovereign, and as such, they adopted the Constitution and could repudiate the national compact whenever it would be in their interest. This kind of states’ rights argument was presented to the Court in McCulloch by Luther Martin, counsel for Maryland and an ardent states’ rights advocate. According to Martin, Maryland could tax the Second Bank of the United States because the states are “truly sovereign” and “possess supreme dominion.” The response of the Court, written by Chief Justice Marshall, was that the Constitution was the creation of the sovereign people, not of the states, and it was therefore superior to the states. In Texas v. White (1869), the Court again had occasion to rule on the theory that a state could renounce its membership in the Union. The Court rejected radical state sovereignty in ruling that the Constitution “looks to an indestructible Union.” Therefore, Texas was not legally capable of secession. Era of Dual Federalism. National supremacy rulings such as McCulloch and Cohens did not go uncontested. Strains of states’ rights theory were present on the Court during the mid-nineteenth century chief justiceship

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States’ rights / 345

A former Confederate officer, Associate Justice Horace Lurton supported a states’ rights interpretation of the Tenth Amendment after he joined the Supreme Court in 1910. (Collection of the Supreme Court of the United States)

of Roger Brooke Taney, but it was not until the early twentieth century that the Court gave support to a full-blown theory of states’ rights known as “dual federalism.” Probably the high-water mark of this brand of states’ rights was Hammer v. Dagenhart (1918). In this case, the Court found that an attempt by Congress to prohibit the labor of children in factories and mines violated the Tenth Amendment. The Court’s rationale was that employment in these industries was a local matter reserved to state regulation by the Tenth Amendment. Dual federalism was the term given to the Court’s theory that the Constitution created a system of dual supremacy: The national government was supreme in the exercise of its delegated powers, but the states were equally supreme in their exercise of reserved powers over local matters. The Court’s narrow interpretation of the reach of delegated powers, for example, the power to regulate interstate commerce, in effect defused the supremacy clause of Article VI. It was not until United States v. Darby

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Lumber Co. (1941) that the Court overruled Hammer and said that the Tenth Amendment was not a check on the delegated powers of Congress. With the Darby decision, Marshall was in ascendancy and Calhoun in decline. The Court had entered a new jurisprudential period of economic nationalism in which federal regulatory power repeatedly displaced states’ rights. Judicial New Federalism. The administration of President Richard M. Nixon gave rise to the phrase “new federalism,” the policy that the national executive and legislative branches should take steps to move power from the federal government back to the states. Subsequent presidential administrations continued to advocate new federalism policies. The Court became part of this spirit when it initiated a period of “judicial new federalism” in National League of Cities v. Usery (1976). In this case, the Court declared that the Tenth Amendment prevented the federal Fair Labor Standards Act (1938), which contained minimum-wage and maximum-hour regulations, from being applied to state and local governments. Although the federal government could apply these general regulatory measures to businesses operating in interstate commerce, it could not apply such regulations to states acting in their governmental capacities. The heart of the Court’s reasoning was that federal regulation of states struck at the states’ integrity by impairing their ability to carry out their core governmental functions. The Usery rule was the Court’s recognition once again of Tenth Amendment-based states’ rights. With judicial new federalism, the Court was saying something different from its “dual federalism” formulation of states’ rights. With dual federalism, the Court said that the Tenth Amendment freed states to regulate local matters free from federal interference. With judicial new federalism, the Court said that the Tenth Amendment prevented application of a general federal regulatory measure to a state’s “integral operations” which were the essence of “state sovereignty.” After struggling for nine years to sort out what were and were not “attributes of state sovereignty” to determine what could be regulated by the federal government, the Court brought this era of states’ rights to an end in Garcia v. San Antonio Metropolitan Transit Authority (1985). The Court overruled Usery, saying that its Tenth Amendment rationale had turned out to be “unworkable.” Henceforth, the Court said, members of Congress and not the justices would decide when states’ rights were a check on federal regulatory power.

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Era of Dual Sovereignty. In his dissent in Garcia, Justice William H. Rehnquist said that the Usery rule of states’ rights was “a principle that will, I am confident, in time again command the support of a majority of this Court.” His prophecy essentially came true in New York v. United States (1992). In that case, the Court considered the application to the states of a congressional enactment, the Low-Level Radioactive Waste Policy Act of 1980. To encourage the states to provide disposal sites, Congress gave the states a choice between two mandates: accept the ownership and resulting liability for radioactive waste or regulate it according to federal guidelines. The Court ruled that both options violated the Tenth Amendment. Borrowing from The Federalist (1788), the New York majority said that the Constitution “leaves to the several States a residuary and inviolable sovereignty.” This core of state sovereignty, the Court said, is violated when Congress commands state legislatures to legislate. In New York, the Court did not overrule Garcia, distinguishing Garcia’s approval of a general federal law being applied to a state from New York’s condemnation of a direct federal mandate to a state legislature. Five years later, Printz v. United States (1997) extended the New York rule to a federal mandate to state administrative officials and gave this states’ rights principle the name of “dual sovereignty.” The issue in Printz was the constitutionality of the mandate of the federal Brady Handgun Violence Prevention Act (1993) that county and municipal chief law enforcement officers conduct a background check of would-be purchasers of handguns. To void the law, the majority used the Tenth Amendment principle of “dual sovereignty,” which represented the Framers’ intention to preserve “the States as independent and autonomous political entities.” The Printz rule was categorical and absolute, thus “no case-by-case weighing of the burdens or benefits is necessary.” The combined states’ rights legacy of New York and Printz was that the “Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.” Apparently left undisturbed by Printz, however, was the holding of South Dakota v. Dole (1987) that the federal government could continue to use grants of money “with strings attached” to entice the states to do what the federal government could not directly mandate. Modern States’ Rights Analysis. In New York, Justice Sandra Day O’Connor wrote for the majority: “In the end, just as a cup may be half

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empty or half full, it makes no difference whether one views the question at issue in this case as one of ascertaining the limits of the power delegated to the Federal Government under the affirmative provisions of the Constitution or one of discerning the core of sovereignty retained by the States under the Tenth Amendment.” Her point was that either analysis—the content of delegated powers or the content of reserved powers— could lead to the same end, enhanced states’ rights. After New York, the Supreme Court used both approaches. In Printz, the majority stressed the Tenth Amendment in voiding the Brady Act. And in United States v. Lopez (1995), the Court focused on the limits of Congress’s delegated powers in voiding the Gun-Free School Zones Act of 1990. In Lopez, the Court said that Congress’s power to regulate interstate commerce extended only to “commercial” matters, which did not include guns at school. New State Constitutionalism. A modern development in states’ rights is a state supreme court using its state constitution to give greater protection to a fundamental right than that accorded the same right by the U.S. Supreme Court using the U.S. Constitution. The rationale for this practice is a long-standing principle of states’ rights: the independent and adequate state grounds doctrine. In essence, this doctrine means that a state supreme court decision grounded solely in state law is final because the Supreme Court has no jurisdiction to review it. A corollary of the doctrine is that a state supreme court, compared with the U.S. Supreme Court, can be more protective, but never less protective, of an individual right. Some applications of this states’ rights doctrine have been state supreme courts acting opposite the U.S. Supreme Court to permit students to collect signatures on political petitions in shopping malls, to allow challenges to school funding schemes based on local property taxes, and to provide enhanced protection from police searches of automobiles. Further Reading The story of states’ rights must begin with the theory’s roots in the United States before 1787. For extended discussion of the antifederalists’ arguments and the Founders’ motives and compromises, see Alpheus T. Mason’s The States’ Rights Debate: Antifederalism and the Constitution (New York: Oxford University Press, 1972) and Raoul Berger’s Federalism: The Founders’ Design (Norman: University of Oklahoma Press, 1987). The standard original source for explaining the Framers’ intent for state au-

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tonomy is The Federalist (1788) by Alexander Hamilton, James Madison, and John Jay. Readers should pay special attention to the tensions between Nos. 39, 27, and 44. A full appreciation of the states’ rights doctrine must include some familiarity with its radical expression, which is detailed in John C. Calhoun’s A Disquisition on Government (Indianapolis, Ind.: Bobbs-Merrill, 1953) and in The Nullification Era (New York: Harper & Row, 1967), edited by William W. Freehling. The eminent constitutional scholar Edward S. Corwin provides a clear exposition of the doctrinal evolution of national supremacy to dual federalism and back to national supremacy in The Commerce Power Versus State Rights (Princeton, N.J.: Princeton University Press, 1936). Sotirios Barber’s “National League of Cities v. Usery: New Meaning for the Tenth Amendment,” in The Supreme Court Review (Chicago: University of Chicago Press, 1977), discusses the end of a modern dry period for states’ rights. The demise of the Usery era and a justification for the new dual sovereignty era is found in Martin H. Redish’s “Doing It with Mirrors: New York v. United States and Constitutional Limitations on Federal Power to Require State Legislation,” Hastings Constitutional Law Quarterly (1993): 593. For the promise and results of the new state constitutionalism, see Justice William J. Brennan, Jr.’s “State Constitutions and the Protection of Individual Rights” in Harvard Law Review (1977): 489. James J. Lopach

STOP AND FRISK RULE Description: The authority of the police, under certain circumstances, to approach and conduct an investigatory detention of a citizen and a limited search for weapons. Relevant amendment: Fourth Significance: In a 1968 case, the Supreme Court allowed police to use stop and frisk searches to investigate suspicious activity and to protect the safety of the public and themselves. The Fourth Amendment prohibits unreasonable search and seizure by the police without a warrant. The Uniform Arrest Act of 1942 and some state statutes, including a New York law, allowed police officers to briefly detain a person for questioning if they suspected illegal activity and frisk

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them (run their hands over the outside of the suspect’s clothing) in search of a weapon. In Terry v. Ohio (1968), the Supreme Court held that police officers can stop a person briefly for the purpose of investigation if they have a reasonable, articulable suspicion that criminal activity is occurring. The Court did not define the term “reasonable suspicion” but placed it somewhere between a vague suspicion and probable cause. The duration of the stop and frisk is limited to the amount of time necessary to either confirm or eliminate the officer’s suspicions about the suspect. The Court also stated that an officer may conduct a limited search or “pat down” of the suspect to ensure their safety and that of the public if they have reason to believe the suspect is armed and dangerous. Steven J. Dunker

SYMBOLIC SPEECH Description: Communication by means other than oral speech or the printed word, usually through objects or actions that have some special significance, such as picketing, burning flags or draft cards, marching, and wearing protest armbands. Relevant amendment: First Significance: The Supreme Court held that nonverbal forms of expression are as fully protected as traditional means of expression when they are peaceful and pose no threat to public order; however, when they contain elements that might disrupt the peace or otherwise pose a threat to the community, they are subject to reasonable regulation. The Supreme Court gradually developed a theory of how the First Amendment applies to so-called “symbolic speech.” However, no doubt reflecting the complexity of the issue and the infinite forms that such expression may take, it did so on a case-by-case basis that left the exact boundaries concerning what forms of nonverbal communication are completely protected somewhat vaguely defined. Nonetheless, the Court has increasingly made clear that peaceful forms of nonverbal expression, just as with more traditional forms of expression, may not be forbidden on the basis of content, although reasonable regulations, if their intent is not to suppress, may be imposed on such communications.

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Flags. The Court’s first symbolic speech case was Stromberg v. California (1931), a conviction under a California law, passed during the Red Scare of 1919, that banned the display of red flags in an attempt to suppress procommunist organizations. The Court struck down the law on the grounds that to forbid the display of emblems used to foster even “peaceful and orderly opposition” to government was an unconstitutional violation of the First Amendment. This ruling clearly foretold the general direction of later Court decisions in the symbolic speech area, namely that nonverbal expression that was peaceful and served as a functional equivalent of ordinary speech or press was, from a constitutional standpoint, equivalent to them. It clearly established the general principle that symbols such as flags could legally be used to peacefully express political opposition. It also specifically contained the seeds of the Court’s holdings in Texas v. Johnson (1989) and United States v. Eichman (1990) that peaceful flag burning and other forms of flag desecration for the purpose of expressing political protest were fully protected. The Court’s second important symbolic speech case also involved flags. In West Virginia State Board of Education v. Barnette (1943), the Court, citing Stromberg among other precedents, overruled its own decision in Minersville School District v. Gobitis (1940). It held that compulsory public school flag salutes and Pledge of Allegiance requirements were unconstitutional, on the grounds that a child required to attend public schools could not, without violating the First Amendment, be forced by public authorities to verbally or symbolically express sentiments “not in his mind.” In rhetoric since cited by many scholars as among the most important and eloquent ever uttered by the Court, Justice Robert H. Jackson declared, “Compulsory unification of opinion achieves only the unanimity of the graveyard” and that it seemed “trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings.” Jackson stated that the case was difficult not because of the principles involved but because the flag involved was that of the United States. He declared: Freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order. If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.

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Extensions of Protection. In other rulings, the Court extended the mantle of First Amendment protection to many other forms of symbolic speech, including the right to peacefully picket in labor disputes in Thornhill v. Alabama (1940) and to peacefully march in support of civil rights in Cox v. Louisiana (1965). In a widely publicized 1969 case, Tinker v. Des Moines Independent Community School District, the Court upheld the right of schoolchildren to wear black armbands to express opposition to the Vietnam War, an activity that the Court termed “closely akin to ‘pure speech’” and thus “entitled to comprehensive protection under the First Amendment” as long as it threatened no disruptions. The Court declared that “undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression” and that to justify suppression of expression, the government would have to show that its action was “caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompanies an unpopular viewpoint.” Court justices not only viewed such nonverbal expression as still essentially communicative in nature but also pointed out that symbolic speech might be the only way for the relatively powerless to gain public attention. In Milkwagon Drivers Union v. Meadowmoor Dairies (1941), the Court stated, “Peaceful picketing is the working man’s means of communication.” Justice William O. Douglas, dissenting in Adderley v. Florida (1966), noted, “Conventional means of petitioning may be, and often have been, shut off to large groups of our citizens [because] those who do not control television and radio, those who cannot afford to advertise in newspapers or circulate elaborate pamphlets may have only a more limited type of access to public officials.” Furthermore, the Court suggested that highly unorthodox and symbolic speech might especially deserve protection because it could communicate in an emotive way that ordinary speech and writing could not. Therefore, in Cohen v. California (1971), the Court overturned the conviction of a man who wore a jacket bearing the words “Fuck the Draft,” declaring that words “are often chosen as much for their emotive as their cognitive force,” and that “we cannot sanction the view that the Constitution, while solicitous of the cognitive content of individual speech, has little or no regard for that emotive function which, practically speaking, may often be the more important element of the overall message sought to be communicated.” The Court increasingly made clear that, just as ordinary written and oral political expression can virtually never be criminalized based on its

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Symbolic speech / 353

content, neither can symbolic political speech be restricted on such grounds. In Schacht v. United States (1970), the Court struck down a law that forbade the unauthorized use of military uniforms in dramatic productions only when such use “tended to discredit” the military, and in Boos v. Barry (1988), it voided a law that banned picketing close to embassies only when the picket signs tended to bring the foreign government target into public “odium” or “disrepute.” Unprotected Expressive Conduct. However, in other symbolic speech cases, the Court declared that symbolically expressive conduct is not always as protected by the First Amendment as is pure speech. Therefore, in Cox v. Louisiana, the Court rejected the idea that the First Amendment and other constitutional provisions afforded “the same kind of freedom to those who would communicate ideas by conduct such as patrolling, marching and picketing on streets and highways” as was provided “to those who communicate ideas by pure speech.” In United States v. O’Brien (1968), the Court upheld a conviction under a 1965 law that outlawed draft card burning, noting, “We cannot accept the view that an apparently limitless variety of conduct can be labeled ‘speech.’” Although the 1965 law was clearly intended to suppress dissent (failure to possess a draft card was already illegal and the congressional debate on the law was filled with references to draft card burners as filthy beatniks, communist stooges, and traitors), the Court upheld it on the strained grounds that it was designed not to hinder free expression but simply to foster the effective functioning of the draft (a purpose that required for its credibility the assumption that the draft administration retained no copies of the information contained on individuals’ draft cards). In O’Brien, the Court for the first time attempted to establish guidelines for determining when conduct could be constitutionally regulated if it was combined with an expressive element. In short, the Court held that restrictions on mixed conduct expression could be upheld if the regulation was within the government’s constitutional power and furthered an important or substantial governmental interest that did not involve the suppression of free expression and “if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” As applied twenty years later to flag desecration, one of the most contentious symbolic speech issues to ever arise, the O’Brien guidelines were held to require the protection of protest flag

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burning on the grounds that the reason behind attempts to outlaw such expression involved the suppression of free expression. The Court’s ruling in Schenck v. Pro-Choice Network of Western New York (1997) suggests that further symbolic speech cases will continue to be decided on a case-by-case basis and that the basis of the Court’s ruling may continue to be difficult to determine. In Schenck, the Court upheld the constitutionality of a fifteen-foot fixed buffer zone banning antiabortion activists from protesting and distributing literature around the driveways and entrances to an abortion clinic but struck down a fifteen-foot “floating” buffer around clients and staff entering or leaving the clinic. It held that the first restriction was justified to ensure public safety and order and burdened speech no more than necessary to achieve that goal, but the second restriction burdened “more speech than is necessary to serve the relevant governmental interests.” Further Reading Farish, Leah. “Tinker v. Des Moines”: Student Protest. Springfield, N.J.: Enslow, 1997. Goldstein, Robert Justin. Saving “Old Glory”: The History of the American Flag Desecration Controversy. Boulder, Colo.: Westview Press, 1995. Johnson, John. The Struggle for Student Rights: “Tinker v. Des Moines” and the 1960’s. Lawrence: University Press of Kansas, 1967. Tedford, Thomas. Freedom of Speech in the United States. State College, Pa.: Strata Publishing, 1997. Robert Justin Goldstein

TAKINGS CLAUSE Description: Provision in the Fifth Amendment that prohibits the taking of private property for public use unless the owner is appropriately compensated. Relevant amendment: Fifth Significance: The takings clause is one of the most important and vigorously contested constitutional provisions, at the center of numerous cases before the Supreme Court. The clause pits fundamental capitalist principles of private ownership against the doctrines of state sovereignty and the public good.

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The U.S. Constitution contains a number of provisions that seek to protect private ownership of property and property rights more generally. Chief among these is the takings clause of the Fifth Amendment. The clause provides that “private property [shall not] be taken for public use without just compensation.” In including this provision, the Framers paid respect to a long-standing, basic individual right with roots in seventeenth century English legal tradition. The takings clause seeks simultaneously to protect the property rights of individuals—crucial to the American capitalist economic system and its cultural value of individualism—and to ensure that the state is able to acquire private property when necessary in order to promote the public good. In other words, it is not a person’s property that is inviolable; rather, a person is entitled to the value of that property in the event that the state has a compelling need to acquire (“take”) it. Such state takings of property (usually land) follow the principle of eminent domain—essentially, that the government retains the ultimate right to secure private property for the good of the state because the existence of the state is a precondition of property itself. However, while the principles of eminent domain and just compensation work together neatly under the concept of the takings clause, the business of defining what specific instances warrant the exercise of eminent domain and what level of compensation is just, is fraught with controversy. The Supreme Court has issued a number of landmark decisions on these questions over the years. Condemnation. Governments exercise eminent domain—that is, they take private property through a process of “condemnation”—in order to advance projects deemed to be in the interest of the public or the government. For example, state and local governments exercise eminent domain over private property that stands in the way of a planned road expansion, a proposed state building, a public works project such as a dam, or any of a number of other projects. Such condemnation of property typically is construed as a taking and thus requires payment of fair market value to the property owner. Eminent domain can be exercised by all levels of government, as well as some quasi-governmental entities such as public utilities. Disputes may arise over what constitutes the fair market value for a property that is taken by the government through condemnation, but the principle of eminent domain is well established and seldom open to a constitutional challenge. As long as just compensation is provided, the

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threshold for a valid exercise of eminent domain is relatively low. Sometimes a government may seize property without providing just compensation. For example, a number of laws at the state and federal level provide for the forfeiture of a person’s assets under certain circumstances, including conviction for specified crimes. For example, federal laws permit the forfeiture of certain property, including boats and homes, that were purchased with illicit drug proceeds. Such laws have been challenged as unconstitutional, but generally it is the Eighth Amendment (which prohibits “excessive fines”) that is invoked. Because seizures of this type are considered penalties, they do not require compensation. There are several other circumstances under which the government can seize property without granting compensation. In certain cases, a government may destroy private property in order to preserve public health and safety. For example, the Court has long upheld the right of the state to demolish structures posing a fire hazard as in Bowditch v. Boston (1880), to destroy diseased trees that threaten the health of other trees as in Miller v. Schoene (1928), or otherwise to abate nuisances, all without compensation. In these cases, property is not seized for public use; rather, the state is performing a remediation action where a property owner has failed to meet requirements specified in laws and ordinances. The takings issue becomes much more complicated when a government seeks not outright condemnation of property but rather to restrict its use. Regulating the use of property is a fundamental and indispensable facet of a government’s police powers. Land use restrictions of various kinds have long been a recognized prerogative of government. For example, federal, state, and local govern ments impose habitability standards for housing, hotels, mobile homes, and other structures. Local governments typically zone different sections of land under their jurisdiction for different uses, such as housing, retail businesses, or parks in order to impose order and promote compatible uses. Some such zoning ordinances restrict liquor stores or adult bookstores from areas near churches or schools. Zoning may also be used to restrict residential construction from floodplains and other hazardous areas. Local ordinances may limit noise from a factory or amphitheater in order to preserve quiet for nearby neighborhoods. Land developers may be required to provide open space for habitat conservation or public recreation. Easements may be required to facilitate public access to natural resources such as shorelines or parks. In these and myriad other ways, government exercises a long-accepted right to restrict the use of property.

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Regulatory Takings. Governmentally imposed restrictions on the use of property, such as zoning restrictions, can be construed as “regulatory takings” when new restrictions are imposed on a piece of property after a person has purchased it. Presumably restrictions that exist on a property at the time of its purchase are reflected in the purchase price, and thus no governmental compensation is necessary. The idea that regulatory (nonphysical) takings require compensation has evolved slowly and remains controversial. Until the early 1900’s most courts rejected the argument, made by some property owners, that postpurchase regulatory takings warranted compensation under the Fifth Amendment. For example, in Euclid v. Ambler Realty Co. (1926), the Court rejected a property owner’s argument that he deserved compensation for a local zoning ordinance that banned industrial development on his land. The Court held that the restriction was a valid exercise of police powers exercised by the government for legitimate reasons. Euclid thus upheld the constitutionality of zoning ordinances. At about this time, the Court began to recognize the possibility that zoning and other land use regulations, if restrictive enough, could indeed amount to takings deserving of just compensation. For example, in Nectow v. City of Cambridge (1928), the Court considered another ordinance prohibiting industrial development. In this case, the ordinance would permit only residential development on land under contract to be sold for industrial use. The Court found that the ordinance amounted to a taking because it allowed for “no practical use” of the particular parcel. Many naturally sought guidance on identifying the point at which an otherwise legitimate government exercise of police powers becomes a taking under the Fifth Amendment. The issue was addressed, albeit incompletely, in the Court’s opinion in Pennsylvania Coal Co. v. Mahon (1922). In that case, the first to address nonphysical takings, the Court found that “Government hardly could go on” if every governmental regulation that diminished the value of property had to be accompanied by compensation. Rather, “some values are enjoyed under an implied limitation and must yield to the police power.” At the same time, however, “the implied limitation must have its limits or the contract and due process clauses are gone.” In this case, the Court held that restrictions that prevented coal mining on a particular piece of property made that property virtually worthless, and therefore the owner deserved compensation. Justice Louis D. Brandeis issued a dissenting opinion, however, highlighting some difficult and controversial aspects to the Court’s attempt at bal-

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ancing public and private interests. Brandeis’s dissent presaged many of the debates that would come into full bloom a half-century later. For many decades after the 1920’s the Court largely avoided takings cases, leaving them to be resolved by state and federal courts. Allowing for some variation among states and regions, legal development during much of the century generally took a fairly conservative approach to the takings clause, emphasizing the need for compelling, often extraordinary state interests in order to effect a taking without compensation. In the 1980’s and 1990’s, however, the Court heard and decided a number of landmark cases that generally had the effect of strengthening the government’s ability to pursue regulatory takings, particularly with the goal of advancing environmental protection. Balancing. In the 1980’s the Court identified two major criteria for determining whether a taking had occurred. This approach, which the Court set forth in Agins v. City of Tiburon (1980), called for considering whether the restriction still permitted an economically viable use of the property and whether the regulation advanced a legitimate state interest. This approach is typically referred to as “balancing of public benefit against private loss.” In the Agins decision, the Court determined that a local zoning ordinance that restricted but did not prohibit residential development did not constitute a taking. It is important to note that denying a property owner the “highest and best” use of his or her property is not adequate grounds for a takings claim. Certainly a regulation eliminating all viable economic use would be considered a taking. This was illustrated in Whitney Benefits v. United States (1989), which held that federal legislation that deprived a mining company of all economic use of its property amounted to a taking without just compensation. Similarly, in Lucas v. South Carolina Coastal Council (1992), the Court found that the denial of a beachfront building permit effectively prohibited all economic use of the land and thus amounted to a taking deserving of compensation. (Lucas allowed an exception for nuisance abatement.) Aside from such extreme cases as Whitney and Lucas, however, it is somewhat difficult to establish whether a regulatory action or zoning ordinance permits “economically viable use.” One case that did so is Goldblatt v. Hempstead (1962), wherein the Court found that an ordinance that effectively prohibited the operation of a gravel pit did nevertheless allow for other, economically viable uses for the property. A similar conclusion was arrived at in Agins.

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In another landmark case from the 1980’s, the Court ruled in First English Evangelical Lutheran Church of Glendale v. County of Los Angeles (1987) that even a temporary taking requires just compensation. In this case, a church sought to rebuild some structures on its property that were destroyed in a flood. The county, however, had adopted an interim ordinance preventing construction (including reconstruction) of buildings on the floodplain where the church’s buildings had been located. The Court found that a taking, such as that created by the county ordinance, requires just compensation even when the taking is temporary. This decision closed a potential loophole of long-lived, though putatively temporary, land use restrictions. Open Space and Environment. The increasing concern with environmental issues in the latter part of the twentieth century was accompanied by greater governmental regulation of private property to provide open space and public access to natural resources. Although the Court has generally supported such goals as legitimate public purposes, it has also had occasion to identify circumstances in which takings have resulted, thus requiring just compensation. For example, in Kaiser Aetna v. United States (1980), the Court held that requiring a landowner to provide public access to a private pond amounted to a taking deserving of just compensation. The Court pushed this decision further in Nollan v. California Coastal Commission (1987), holding that a state agency’s demand for a coastal easement on private property amounted to a regulatory taking that required just compensation. In the case of Nollan, it was a public resource (the coastline of the Pacific Ocean), rather than a private pond, for which public access was required. It would seem that the Court accepted a broad range of resourcerelated goals as legitimate grounds for the exercise of eminent domain. At the same time, the Court seemed to be viewing open space requirements and demands for easements as bona fide takings requiring just compensation. A distinction was generally drawn for open space requirements imposed on land developers whose proposed development would itself generate a need for such open space. For example, a housing development on agricultural land would increase the population of the area, thus arguably creating a need to preserve and create access to some open space, such as parks or greenbelts. Requirements for such environmental impact-mitigating measures might therefore not warrant compensation. However, in Dolan v. City of Tigard (1994), the Court struck down a city’s

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requirement that a hardware store owner dedicate a portion of property for a trail in order to be permitted to expand the store. The Court held that the city had not satisfactorily established that the requirement was needed to offset any anticipated increase in traffic from the expansion. Dolan thus underscored the need to link mitigating measures to the actual impacts of a proposed project. Later Decisions. In the late 1990’s the Court seemed to continue its support for environmentally based regulatory takings, while maintaining or even expanding the requirement that such takings, when significant, require just compensation. The state has a right to insist on property restrictions that protect the environment, the Court seemed to say, but the state must be willing to pay when these restrictions significantly restrict use. A major case from this period was Suitum v. Tahoe Regional Planning Agency (1997). In this case, a property owner sought to build a home on an undeveloped lot she had purchased fifteen years earlier. The lot, in Nevada near Lake Tahoe, fell under the jurisdiction of the Tahoe Regional Planning Agency (TRPA). The agency, charged with protecting environmental quality in the Lake Tahoe Basin, prohibited the development as likely to cause unacceptable environmental damage. TRPA essentially denied all economic use and offered as compensation “transferable development rights.” Such rights could not be used to build on Suitum’s lot but could be sold to a different landowner in the Tahoe basin where such development would not be prohibited. By purchasing those rights, the property owner could build a larger structure than otherwise allowed. Suitum had been told by a lower court that her case was not “ripe”— that she had not accepted and tried to sell the transferrable development rights. However, the Supreme Court held that Suitum’s case was indeed ripe and must be decided by the District Court of Nevada. Transferable development rights are one of a number of the sometimes innovative, sometimes complicated, and frequently controversial approaches that were developed by various governmental bodies in order to regulate land use without running afoul of the Fifth Amendment. Other approaches involve development fees, open space dedications, habitat conservation plans, and statutory compensation programs. Further Reading One of the most focused recent works on the Supreme Court’s treatment of takings is provided in George Skouras’s Takings Law and the Supreme

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Court: Judicial Oversight of the Regulatory State’s Acquisition, Use, and Control of Private Property (New York: P. Lang, 1998). For a theoretical overview of the broader subject of property rights, see Tom Bethell’s The Noblest Triumph: Property and Prosperity Through the Ages (New York: St. Martin’s Press, 1998). Among general works on legal issues associated with property rights (including treatments of takings), see Jan Laitos’s Law of Property Rights Protection: Limitations on Governmental Powers (Gaithersburg, Md.: Aspen Law and Business, 1998). On the subject of environmentally motivated takings, see Robert Meltz et al., The Takings Issue: Constitutional Limits on Land Use Control and Environmental Regulation (Washington, D.C.: Island Press, 1998), and Robert Innes et al., “Takings, Compensation, and Endangered Species Protection on Private Lands,” Journal of Economic Perspectives (Summer, 1998): 35-52. A somewhat critical assessment of regulatory takings is provided by Gideon Kanner in “Just Compensation Is by No Means Always Just,” The National Law Journal (March 24, 1997): A23. The Congressional Budget Office has put out a very understandable overview of regulatory takings, describing the current system for handling regulatory takings claims and evaluating various proposals for changing that system. See Regulatory Takings and Proposals for Change (Washington, D.C.: Congressional Budget Office, 1999). Steve D. Boilard

TIME, PLACE, AND MANNER REGULATIONS Description: Permissible forms of prior restraint not based on content of expression that regulate when, where, and how expression may occur freely. Relevant amendment: First Significance: The Supreme Court usually considers the validity of time, place, and manner regulations in view of the forum in which the regulations are applied. Expressive activity occurring in a public, rather than private, forum receives the highest First Amendment protection. In Heffron v. International Society for Krishna Consciousness (1981), Supreme Court Justice Byron R. White identified four characteristics of a valid

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time, place, and manner regulation: first, the restriction must be content neutral; second, the restriction must serve a significant governmental interest; third, the restriction must be no broader than would accomplish its purpose; and fourth, alternative means must exist to communicate the expression that is limited by the regulation. All four of the characteristics must be present for the regulation to be valid. Time, Place, and Manner. The Court has allowed to stand ordinances that restrict loud noises at night when people are likely to be asleep and broadcast regulations that restrict indecent programming to safe harbor hours, between 10 p.m. and 6 a.m., when children are less likely to be in the audience. The Court makes decisions regarding place according to the forum in which an activity occurs: a traditional public forum, a designated public forum, public property that is not a public forum, or private property. Traditional public forums are places that are accepted as sites where speeches may be made and people may assemble. Examples include public parks, street corners, and sidewalks. Speeches occurring in traditional public forums receive the highest First Amendment protection. In Lovell v. City of Griffin (1938), the Court made it clear that public streets are public forums. The city of Griffin, Georgia, had an ordinance requiring written permission from the city manager before distributing information in any form. The city argued that First Amendment protection applied to only the publication of information, not its distribution, but Chief Justice Charles Evans Hughes refuted that argument in the opinion he wrote for the Court. Designated public forums are places specifically provided by the government for communication, assembly, and similar uses. These include government-owned auditoriums, meeting halls, fairgrounds, and student newspapers open to all students. Communication occurring in designated public forums receives First Amendment protection, but not as much as that occurring in traditional public forums; therefore, it is more subject to time, place, and manner regulations. Some types of public property are not considered public forums and are closed to expressive activity on the part of the general public. Examples include airport concourses, prisons, and military bases. Private property is not a public forum; owners may decide who uses the property for expressive activity. In Grayned v. Rockford (1972), the Court applied time, place, and man-

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ner regulations to demonstrations next to a school in session, saying the nature of the place, including the pattern of its typical activities, dictates the kinds of regulations of time, place, and manner that are reasonable. In its decision, the Court indicated that silent expression in a public library might be appropriate, although making a speech in the area where patrons are reading would not be. The manner of expression should be compatible with the normal activity of a particular place at a particular time. Problems in Application. When time, place, and manner regulations were applied to commercial or religious speech (Metromedia v. San Diego, 1981) or obscene or indecent language, the Court generally found these restrictions invalid because they were content based. The same line of reasoning was used to invalidate the Communication Decency Act of 1996 (Reno v. American Civil Liberties Union, 1996). The Court generally frowns on ordinances that rely on the discretion of community officials to decide whether speech is allowed (Schneider v. New Jersey, 1939) because these deliberations often require officials to evaluate speech based on content. In Madsen v. Women’s Health Center (1994), the Court applied the third prong of the 1981 validity test in considering whether an injunction directed at protesters at an abortion clinic was narrowly tailored enough to accomplish its goals without restricting more expression than necessary. The Court decided that a 36-foot buffer zone around clinic entrances and a driveway was permissible and not over broad, but that a 300-foot buffer zone around the residences of clinic employees and a 300-foot noapproach zone around the clinic were over broad, and therefore impermissible. Further Reading Gillmor, Donald, Jerome Barron, and Todd Simon. Mass Communication Law: Cases and Comment. 6th ed. Belmont, Calif.: Wadsworth, 1998. Pember, Don. Mass Media Law. Boston: McGraw-Hill, 1999. Teeter, Dwight, Don Leduc, and Bill Loving. Law of Mass Communications: Freedom and Control of Print and Broadcast Media. 9th ed. New York: Foundation Press, 1998. Alisa White Coleman

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UNPROTECTED SPEECH Description: Speech that, if it falls into one or more of several categories, is treated by the Supreme Court as entitled to no (or lessened) constitutional protection because of the harm to society such utterances may cause. Relevant amendment: First Significance: The Court played a role in defining the categories of unprotected speech and in trying to achieve a balance between the interests of society and the liberty interests of the individual speaker. In Chaplinsky v. New Hampshire (1942), the Supreme Court upheld the conviction of a Jehovah’s Witness who called a city marshal a “racketeer and a Fascist.” He was charged under a state law punishing offensive and derisive speech or name-calling in public. Writing for a unanimous Court, Justice Frank Murphy noted that there were limited classes of speech that could be prevented and punished without violating the Constitution. These classes included “the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words— those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” He noted that these classes of speech were not necessary for the expression of ideas and were of such little social value that any benefit they imparted would be outweighed by society’s interest in “order and morality.” Justice Murphy’s approach Justice Frank Murphy defined several classes of speech that are not protected by the Constitution. has been characterized as a (Library of Congress) two-tier theory of the First

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Amendment. Socially valuable speech is protected, but certain categories are unworthy of constitutional protection. After Chaplinsky, as the Court became more sensitive to free speech issues, it emphasized narrowly and precisely defining these categories, as well as introducing into each of these categories (except obscenity) certain First Amendment exceptions. Obscenity. In 1973 in Miller v. California, the Court announced its standard for obscenity. Writing for a five-justice majority, Chief Justice Warren E. Burger held that three requirements must be met to find material obscene. First, the average person, applying contemporary community standards, must find the material appealing to his or her prurient interest. Second, the material must depict sexual conduct in a patently offensive way. Third, material is obscene if, taken as a whole—not simply focusing on isolated passages or pictures in, for example, a book or magazine—it “lacks serious literary, artistic, political, or scientific value.” In short, obscenity is “hard core” pornography. Although the Court found no First Amendment value in obscenity, it consistently held that not all sexual depictions or utterances were the equivalent of obscenity. Thus, in Sable Communications v. Federal Communications Commission (1989), the Court stressed that the government’s power to prohibit obscene speech does not extend to indecent speech. However, in other cases, the Court also recognized situations in which the government can ban profane or indecent language, including on television or radio broadcasts and at public elementary and secondary schools. Words Against Others. Libel is any false and malicious statement made for the purpose of defaming (injuring the good name or reputation of) a living person. If the statement is spoken rather than written, the offense is called slander. Prior to 1964, such false statements were understood as totally unprotected by the First Amendment, but in that year, in New York Times Co. v. Sullivan, the Court began a process of applying First Amendment standards to certain types of libel actions. In essence, if a libel action is brought by a public official or a public figure (such as a well-known film star), that plaintiff must demonstrate that the false statement was made with actual malice, defined by the Court as knowledge of its falsity, or reckless disregard for truth or falsity. Although Chaplinsky was not overruled, after that case, the Court never upheld a conviction solely for “fighting words” directed at public officials.

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In R.A.V. v. City of St. Paul (1992), the Court held that bans on fighting words must be “content-neutral.” That is, a city cannot ban only certain categories of hate speech, such as that which is race- or gender-based. The First Amendment requires an all-or-nothing approach. Incitement of Illegal Activity. Although not mentioned in Justice Murphy’s Chaplinsky listing, incitement to illegal activity was also traditionally considered unprotected speech. Much of modern First Amendment jurisprudence was developed in the context of speech advocating violent overthrow of the government, starting with Justice Oliver Wendell Holmes’s famous clear and present danger test, enunciated in Schenck v. United States (1919). The challenge for the Court, from the Red Scare of the 1920’s to the McCarthy era of the 1950’s and the protests of the 1960’s, has been to protect society’s interests while also protecting political advocacy by unpopular dissidents. In Brandenburg v. Ohio (1969), the Court put forward a standard that is highly protective of unpopular political speech and combines the best elements of the clear and present danger test with an approach—first enunciated in the World War I era by Judge Learned Hand—that focuses on the actual words of the speaker. According to the per curiam opinion in Brandenburg, the state may not “forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless actions and is likely to incite or produce such action.” The Court reaffirmed its own earlier distinction between “mere abstract teaching” of the moral “propriety” or even “necessity” of resorting to force and violence, on one hand, and “preparing a group for violent action and steeling it to such action” on the other. The Court also held that certain categories of speech, although not totally unprotected, may be entitled to lesser First Amendment protection. This group includes sexually explicit but nonobscene speech (in certain contexts), symbolic speech (communicative conduct such as marching, picketing, wearing arm bands, or burning a U.S. flag), and commercial speech (advertising and similar commercial expression). Further Reading Abraham, Henry J., and Barbara A. Perry. Freedom and the Court. 7th ed. New York: Oxford University Press, 1998. Greenwalt, Kent. Fighting Words. Princeton, N.J.: Princeton University Press, 1995.

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Lewis, Anthony. Make No Law: The Sullivan Case and the First Amendment. New York: Random House, 1991. Philip A. Dynia

WITNESSES, CONFRONTATION OF Description: The right of criminal defendants to have the witnesses against them testify in open court, face to face with them and the fact-finder, and to cross-examine those witnesses. Relevant amendment: Sixth Significance: As interpreted by the Supreme Court, the provision prohibits the prosecution from using evidence such as video testimony, written statements, affidavits, transcripts, and second-hand accounts. Banned also are unreasonable limits on defense questioning of prosecution witnesses. The Sixth Amendment’s confrontation clause fosters reliability and fairness in federal and state prosecutions. It allows criminal defendants to confront witnesses against them in open court, under oath or affirmation, face to face, and to cross-examine these witnesses. The scope of its protections, which benefit criminal defendants, has been defined by Supreme Court decisions citing history, reason, and practicality. Normally, words may not be reported by others or in writing—that is, the witness must appear—and may be cross-examined under the full panoply of courtroom safeguards. However, the defendants’ entitlements are qualified. For example, the separate, long-standing evidentiary rule against hearsay has numerous exceptions permitting second-hand or reported evidence, most of which, if they are deemed “firmly rooted” (rational and historically traditional), the Court has gradually been incorporating into the confrontation clause as in White v. Illinois (1992) and Bourjailly v. United States (1987). Thus, excited utterances, statements to physicians, coconspirator statements during and furthering the conspiracy, and the like can be reported, though the person who spoke them is not at trial to be confronted. These sorts of statements are presumed to be especially reliable and necessary. In Idaho v. Wright (1990), the Court ruled that some second-hand statements could be allowed if special facts demonstrated their reliability and necessity. In Ohio v. Roberts (1980), the

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Court ruled that sometimes the litigators must demonstrate the unavailability of the witness for appearance at trial before second-hand statements could be admitted as evidence. Once witnesses are produced at trial, defendants’ opportunity to crossexamine them may similarly be confined within reasonable limits. In Montana v. Egelhoff (1996), the Court ruled that, for example, the judge may apply normal exclusionary evidence rules, recognize privileges, or prohibit unduly prejudicial, harassing, time-consuming, or misleading questioning. If a witness becomes ill or dies after giving testimony but before full cross-examination, the testimony might still be allowed to stand. In Maryland v. Craig (1990), the Court determined that if a specific child-witness will suffer trauma from confronting his or her accused molester, the child may testify on one-way closed-circuit television, despite some infringement of the face-to-face requirement, provided there is full opportunity to put questions to the witness and all can see the screen. Thus, the rights conferred by the confrontation clause are not absolute but are qualified by countervailing concerns and may amount merely to a strong preference. Paul F. Rothstein

ZONING Description: Premier land-use regulation method in the United States, which divides urban areas into different sectors or zones, with different uses and regulations and requirements. Relevant amendments: First, Fifth Significance: Most contested zoning legal issues were handled by one of the fifty state court systems and received final judgment in the state supreme courts; however, a few significant land-use cases found their way to the U.S. Supreme Court. The police power, which is the right of government to regulate public health, safety, and welfare, gives zoning its legitimacy. State constitutions and statutes enable local governments to create their own zoning ordinances. Some states also created state zoning laws. The exact limits of the zoning power may seem fluid in time and place. Zoning power is ulti-

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mately what the courts determine. Conservative courts tend to limit the zoning power, and liberal courts tend to expand it. Euclid v. Ambler Realty Co. (1926) was one of the most significant legal decisions by the Supreme Court in the history of zoning. Chief Justice George Sutherland concluded that each community had the right and responsibility to determine its own character. Zoning was a valid use of the police power as long as it did not disturb the orderly growth of the region or the nation. Justice Sutherland wrote, “But this village, though physically a suburb of Cleveland, is a separate municipality, with powers of its own and authority to govern itself . . . The will of its people determines, not that industrial development shall cease at its boundaries, but that such development shall proceed between fixed lines.” The Court made it clear that a municipality may determine the nature of development within its boundaries and plan and regulate the use of land as the people within the community may consider it to be in the public interest. Justice Sutherland introduced the concept that a community must also relate its plans to the area outside its own boundaries. Thus, the Court sustained a village zoning ordinance that prevented Ambler Realty from building a commercial structure in a residential zone. This case first established the constitutionality of all parts of comprehensive zoning. The courts continued to support the rights of municipalities to zone, and conventional “Euclidean zoning” became almost universal in both urban and suburban areas. The power to zone as well as to use other, more flexible land-use controls, has an ideological dimension because it conflicts with the ability of property owners to use their property as they see fit. Typically, zones have been devoted to commercial, industrial, and residential uses, with different density requirements and other regulations. Relationship to Taking Cases. In First English Evangelical Lutheran Church of Glendale v. County of Los Angeles (1987), the Court ruled that if landowners had been unduly burdened by land-use control regulations, they should be compensated by the government. Before this case, it was understood that a property owner might sue to have a regulation overturned. However, it was not required that compensation be paid for losses incurred while the regulation was actually in force. The Court’s decision hinged on the last sentence of the Fifth Amendment, “nor shall private property be taken for public use, without just compensation.” Undue restriction of use in the Court’s view met the meaning of the word “taken” and therefore required compensation. Eventually when the case

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was sent back to a lower court, it was found that the taking had not occurred and that the church was not entitled to compensation. Despite the lower court’s decision, the Court’s ruling meant that a government might be forced to pay a large judgment if its actions were found to constitute a taking. Some feared the possibility that local governments might have to pay large judgments to litigants who could prove that zoning power had been overused. Later, in Lucas v. South Carolina Coastal Council (1992) and Dolan v. City of Tigard (1994), the Court upheld the limiting of the government’s authority to restrict the specific uses to which privately owned land could be devoted. For example, one opinion in the Lucas decision suggested that the one instance in which there might not need to be compensation (even though the property owner was deprived of all property use) was if that use might violate an established nuisance law. Some authorities speculated that the legal basis of zoning might be trimmed back to being totally dependent on nuisance law. Land-use regulations in Hadacheck v. Sebastian (1915) had evolved from nuisance law but had been expanded well beyond these limited origins to a much more extensive notion of the public interest. Aesthetics and Exclusionary Zoning. Many legal experts believe that zoning and other police power regulations may not be adopted when their sole basis lies in aesthetics. Proponents of this theory cite Welch v. Swasey (1909) and decisions rendered by most of the state supreme courts. However, this view was challenged in Berman v. Parker (1954), in which Justice William O. Douglas, speaking for the unanimous Court opinion, stated, “If those who govern the District of Columbia decide that the Nation’s Capital should be beautiful as well as sanitary, there is nothing in the Fifth Amendment that stands in the way.” However, this case involved an effort to enjoin condemnation to preserve the natural beauty of urban renewal property. The Court was not confronted with a case in which police power was exercised in the form of a zoning ordinance and in which no compensation was paid. However, state courts have applied Berman in zoning cases. Douglas clearly affirmed that citizens need not tolerate an unsightly community and may take legal steps to change it. Restrictive covenants, which discriminate against minority groups through race-based zoning ordinances, were declared unconstitutional by the Court in 1927 in Buchanan v. Warley. A Louisville, Kentucky, ordinance regulated the occupancy of city blocks; people of color could not

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reside in blocks where greater numbers of dwellings were occupied by whites and vice versa. This use of the police power was a violation of the Fourteenth Amendment because it prevented the use of property and deprived its owner of use without due process. Years later the Court held in Arlington Heights v. Metropolitan Housing Development Corp. (1977) that a zoning ordinance does not necessarily violate the Constitution by restricting minority and low-income people; it must be shown that there was a deliberate exclusionary intention. Further Reading Babcock, Richard F. The Zoning Game: Municipal Practices and Policies. Madison: University of Wisconsin Press, 1966. Crawford, Clan. Strategy and Tactics in Municipal Zoning. Englewood Cliffs, N.J.: Prentice Hall, 1979. Kelly, Eric D. “Zoning.” In The Practice of Local Government Planning, edited by Frank So. Washington D.C.: International City Management Association, 1988. Mandelker, Daniel R. Land Use Law. 4th ed. Charlottesville, Va.: Michie, 1997. Nelson, Robert H. Zoning and Property Rights: An Analysis of the American System of Land-Use Regulation. Cambridge, Mass.: MIT Press, 1980. G. Thomas Taylor

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THE DECLARATION OF INDEPENDENCE In Congress, July 4, 1776 The unanimous declaration of the thirteen United States of America When in the Course of human Events, it becomes necessary for one People to dissolve the Political Bands which have connected them with another, and to assume among the Powers of the Earth, the separate and equal Station to which the Laws of Nature and of Nature’s God entitle them, a decent Respect to the Opinions of Mankind requires that they should declare the causes which impel them to the Separation. We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness—That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, that whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient Causes; and accordingly all Experience hath shewn, that Mankind are more disposed to suffer, while Evils are sufferable, than to right themselves by abolishing the Forms to which they are accustomed. But when a long Train of Abuses and Usurpations, pursuing invariably the same Object, evinces a Design to reduce them under absolute Despotism, it is their Right, it is their Duty, to throw off such Government, and to provide new Guards for their future Security. Such has been the patient Sufferance of these Colonies; and such is now the Necessity which constrains them to alter their former Systems of Government. The History of the present King of Great Britain is a History of repeated Injuries and Usurpations, all having in direct Object the Establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid World. He has refused his Assent to Laws, the most wholesome and necessary for the public Good.

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He has forbidden his Governors to pass Laws of immediate and pressing Importance, unless suspended in their Operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them. He has refused to pass other Laws for the Accommodation of large Districts of People, unless those People would relinquish the Right of Representation in the Legislature, a Right inestimable to them, and formidable to Tyrants only. He has called together Legislative Bodies at Places unusual, uncomfortable, and distant from the Depository of their public Records, for the sole Purpose of fatiguing them into Compliance with his Measures. He has dissolved Representative Houses repeatedly, for opposing with manly Firmness his Invasions on the Rights of the People. He has refused for a long Time, after such Dissolutions, to cause others to be elected; whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the meantime exposed to all the Dangers of Invasion from without, and Convulsions within. He has endeavoured to prevent the Population of these States; for that Purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their Migrations hither, and raising the Conditions of new Appropriations of Lands. He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary Powers. He has made Judges dependent on his Will alone, for the Tenure of their Offices, and the Amount and Payment of their Salaries. He has erected a Multitude of new Offices, and sent hither Swarms of Officers to harass our People, and eat out their Substance. He has kept among us, in Times of Peace, Standing Armies, without the consent of our Legislatures. He has affected to render the Military independent of and superior to the Civil Power. He has combined with others to subject us to a Jurisdiction foreign to our Constitution, and unacknowledged by our Laws; giving his Assent to their Acts of pretended Legislation: For quartering large Bodies of Armed Troops among us: For protecting them, by a mock Trial, from Punishment for any Murders which they should commit on the Inhabitants of these States: For cutting off our Trade with all Parts of the World:

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For imposing Taxes on us without our Consent: For depriving us, in many Cases, of the Benefits of Trial by Jury: For transporting us beyond Seas to be tried for pretended Offences: For abolishing the free System of English Laws in a neighbouring Province, establishing therein an arbitrary Government, and enlarging its Boundaries, so as to render it at once an Example and fit Instrument for introducing the same absolute Rule into these Colonies: For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments: For suspending our own Legislatures, and declaring themselves invested with Power to legislate for us in all Cases whatsoever. He has abdicated Government here, by declaring us out of his Protection and waging War against us. He has plundered our Seas, ravaged our Coasts, burnt our Towns, and destroyed the Lives of our People. He is, at this Time, transporting large Armies of foreign Mercenaries to compleat the Works of Death, Desolation, and Tyranny, already begun with circumstances of Cruelty and Perfidy, scarcely paralleled in the most barbarous Ages, and totally unworthy the Head of a civilized Nation. He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the Executioners of their Friends and Brethren, or to fall themselves by their Hands. He has excited domestic Insurrections amongst us, and has endeavoured to bring on the Inhabitants of our Frontiers, the merciless Indian Savages, whose known Rule of Warfare is an undistinguished Destruction, of all Ages, Sexes and Conditions. In every stage of these Oppressions we have Petitioned for Redress in the most humble Terms: Our repeated Petitions have been answered only by repeated Injury. A Prince, whose Character is thus marked by every act which may define a Tyrant, is unfit to be the Ruler of a free People. Nor have we been wanting in Attentions to our British Brethren. We have warned them from Time to Time of Attempts by their Legislature to extend an unwarrantable Jurisdiction over us. We have reminded them of the Circumstances of our Emigration and Settlement here. We have appealed to their native Justice and Magnanimity, and we have conjured them by the Ties of our common Kindred to disavow these Usurpations, which would inevitably interrupt our Connections and Correspondence. They too have been deaf to the Voice of Justice and of Consanguinity. We must, therefore, acquiesce in the Necessity, which denounces our Separa-

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tion, and hold them, as we hold the rest of Mankind, Enemies in War, in Peace, Friends. We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the World for the Rectitude of our Intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly Publish and Declare, That these United Colonies are, and of Right ought to be, Free and Independent States; that they are absolved from all Allegiance to the British Crown, and that all political Connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm Reliance on the Protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.

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THE CONSTITUTION OF THE UNITED STATES OF AMERICA We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. ARTICLE I. section 1. All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. section 2. The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature. No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen. Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, insuch Manner as they shall by Law direct. The number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode Island and Providence Plantations one, Connecticut five, New York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.

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When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies. The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment. section 3. The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote. Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies. No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen. The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided. The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States. The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present. Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

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section 4. The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators. The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day. section 5. Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide. Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member. Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal. Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting. section 6. The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place. No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

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section 7. All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills. Every Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law. Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill. section 8. The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; To borrow Money on the credit of the United States; To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States; To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

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To provide for the Punishment of counterfeiting the Securities and current Coin of the United States; To establish Post Offices and post Roads; To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; To constitute Tribunals inferior to the supreme Court; To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations; To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress; To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards and other needful Buildings;—And To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. section 9. The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight,

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but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person. The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. No Bill of Attainder or ex post facto Law shall be passed. No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken. No Tax or Duty shall be laid on Articles exported from any State. No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State be obliged to enter, clear, or pay Duties in another. No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time. No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State. section 10. No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility. No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Control of the Congress. No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

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ARTICLE II. section 1. The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector. The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President. The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States. No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of the President; neither shall any person be eligible to that Of-

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fice who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States. In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected. The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them. Before he enter the Execution of his Office, he shall take the following Oath or Affirmation:—“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.” section 2. The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment. He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

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section 3. He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States. section 4. The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors. ARTICLE III. section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office. section 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall

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have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed. section 3. Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted. ARTICLE IV. section 1. Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State; And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. section 2. The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime. No person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due. section 3. New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress. The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so con-

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strued as to Prejudice any Claims of the United States, or of any particular State. section 4. The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence. ARTICLE V. The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the year one thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate. ARTICLE VI. All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation. This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

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ARTICLE VII. The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same. Done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and eighty seven and of the Independence of the United States of America the Twelfth. In Witness whereof We have hereunto subscribed our Names,

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AMENDMENTS TO THE U.S. CONSTITUTION AMENDMENT I. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. [ratified December, 1791] AMENDMENT II. A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. [ratified December, 1791] AMENDMENT III. No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law. [ratified December, 1791] AMENDMENT IV. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. [ratified December, 1791] AMENDMENT V. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law;

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nor shall private property be taken for public use without just compensation. [ratified December, 1791] AMENDMENT VI. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed; which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence. [ratified December, 1791] AMENDMENT VII. In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law. [ratified December, 1791] AMENDMENT VIII. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. [ratified December, 1791] AMENDMENT IX. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. [ratified December, 1791] AMENDMENT X. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. [ratified December, 1791]

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AMENDMENT XI. The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. [ratified February, 1795] AMENDMENT XII. The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;—The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;—The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.— The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the VicePresident; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the of-

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fice of President shall be eligible to that of Vice-President of the United States. [ratified June, 1804] AMENDMENT XIII. section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. section 2. Congress shall have power to enforce this article by appropriate legislation. [ratified December, 1865] AMENDMENT XIV. section 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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. section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United

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States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of twothirds of each House, remove such disability. section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void. section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. [ratified July, 1868] AMENDMENT XV. section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. section 2. The Congress shall have power to enforce this article by appropriate legislation. [ratified February, 1870] AMENDMENT XVI. The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration. [ratified February, 1913] AMENDMENT XVII. The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifica-

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tions requisite for electors of the most numerous branch of the State legislatures. When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct. This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution. [ratified April, 1913] AMENDMENT XVIII. section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited. section 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation. section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress. [ratified January, 1919, repealed December, 1933] AMENDMENT XIX. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex. Congress shall have power to enforce this article by appropriate legislation. [ratified August, 1920] AMENDMENT XX. section 1. The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such

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terms would have ended if this article had not been ratified; and the terms of their successors shall then begin. section 2. The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day. section 3. If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified. section 4. The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them. section 5. Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this article. section 6. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of threefourths of the several States within seven years from the date of its submission. [ratified January, 1933] AMENDMENT XXI. section 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

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section 2. The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited. section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress. [ratified December, 1933] AMENDMENT XXII. section 1. No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. But this Article shall not apply to any person holding the office of President when this Article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term. section 2. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of threefourths of the several States within seven years from the date of its submission to the States by the Congress. [ratified February, 1951] AMENDMENT XXIII. section 1. The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct: A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.

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section 2. The Congress shall have power to enforce this article by appropriate legislation. [ratified March, 1961] AMENDMENT XXIV. section 1. The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax. section 2. The Congress shall have power to enforce this article by appropriate legislation. [ratified January, 1964] AMENDMENT XXV. section 1. In case of the removal of the President from office or of his death or resignation, the Vice President shall become President. section 2. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress. section 3. Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President. section 4. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President. Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written

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declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office. [ratified February, 1967] AMENDMENT XXVI. section 1. The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age. section 2. The Congress shall have power to enforce this article by appropriate legislation. [ratified July, 1971] AMENDMENT XXVII. No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened. [ratified May 7, 1992]

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The Bill of Rights

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MAGILL’S C H O I C E

The Bill of Rights Volume 2

Court Cases Appendices Index edited by Thomas T. Lewis Mount Senario College

Salem Press, Inc. Pasadena, California Hackensack, New Jersey

Copyright © 2002, by Salem Press, Inc. All rights in this book are reserved. No part of this work may be used or reproduced in any manner whatsoever or transmitted in any form or by any means, electronic or mechanical, including photocopy, recording, or any information storage and retrieval system, without written permission from the copyright owner except in the case of brief quotations embodied in critical articles and reviews. For information address the publisher, Salem Press, Inc., P.O. Box 50062, Pasadena, California 91115. Essays in these volumes first appeared in Encyclopedia of the U.S. Supreme Court (2001), Censorship (1997), and American Justice (1996). Many essays have been updated, and new material has been added. ∞ The paper used in these volumes conforms to the American National Standard for Permanence of Paper for Printed Library Materials, Z39.48-1992 (R1997). Library of Congress Cataloging-in-Publication Data The Bill of Rights / edited by Thomas T. Lewis. p. cm. — (Magill's choice) Includes bibliographical references and index. ISBN 1-58765-062-2 (set : alk. paper) — ISBN 1-58765-063-0 (v. 1 : alk. paper) — ISBN 1-58765-064-9 (v. 2 : alk. paper) 1. United States. Constitution. 1st-10th Amendments 2. Civil rights—United States. I. Lewis, Thomas T. (Thomas Tandy) II. Series. KF4750 .B55 2002 342.73'085--dc21 2002002007

printed in the united states of america

TABLE OF CONTENTS The Cases Abington School District v. Schempp . . . . . . . . . . . . Adair v. United States . . . . . . . . . . . . . . . . . . . Adamson v. California . . . . . . . . . . . . . . . . . . Adarand Constructors v. Peña . . . . . . . . . . . . . . . Adderley v. Florida. . . . . . . . . . . . . . . . . . . . . Adkins v. Children’s Hospital . . . . . . . . . . . . . . . Agostini v. Felton . . . . . . . . . . . . . . . . . . . . . Albertson v. Subversive Activities Control Board . . . . . . Allegheny County v. American Civil Liberties Union Greater Pittsburgh Chapter . . . . . . . . . . . . . . . . . . . American Communications Association v. Douds. . . . . . Argersinger v. Hamlin . . . . . . . . . . . . . . . . . . . Ballard v. United States . . . . . . . . . . . . . . . . . . Barenblatt v. United States. . . . . . . . . . . . . . . . . Barker v. Wingo . . . . . . . . . . . . . . . . . . . . . . Barnes v. Glen Theatre . . . . . . . . . . . . . . . . . . Barron v. Baltimore . . . . . . . . . . . . . . . . . . . . Bates v. State Bar of Arizona . . . . . . . . . . . . . . . . Batson v. Kentucky . . . . . . . . . . . . . . . . . . . . Benton v. Maryland . . . . . . . . . . . . . . . . . . . . Betts v. Brady . . . . . . . . . . . . . . . . . . . . . . . Bigelow v. Virginia . . . . . . . . . . . . . . . . . . . . BMW of North America v. Gore . . . . . . . . . . . . . . Boerne v. Flores . . . . . . . . . . . . . . . . . . . . . . Bolling v. Sharpe . . . . . . . . . . . . . . . . . . . . . Bowers v. Hardwick . . . . . . . . . . . . . . . . . . . . Boy Scouts of America v. Dale . . . . . . . . . . . . . . . Boyd v. United States . . . . . . . . . . . . . . . . . . . Brandenburg v. Ohio . . . . . . . . . . . . . . . . . . . Branzburg v. Hayes . . . . . . . . . . . . . . . . . . . . Brecht v. Abrahamson . . . . . . . . . . . . . . . . . . . Brown v. Board of Education . . . . . . . . . . . . . . . Brown v. Mississippi. . . . . . . . . . . . . . . . . . . . Buchanan v. Warley . . . . . . . . . . . . . . . . . . . . Burstyn v. Wilson . . . . . . . . . . . . . . . . . . . . . xxvii

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410 411 412 413 414 415 415 416 418 419 420 421 422 423 423 424 426 427 428 429 430 430 431 433 434 435

The Bill of Rights

Butler, United States v.. . . . . . . . . . . . . . . . . . . . California v. Acevedo . . . . . . . . . . . . . . . . . . . . Cantwell v. Connecticut . . . . . . . . . . . . . . . . . . . Carolene Products Co., United States v. . . . . . . . . . . . Carroll v. United States . . . . . . . . . . . . . . . . . . . Carter v. Carter Coal Co. . . . . . . . . . . . . . . . . . . Champion v. Ames. . . . . . . . . . . . . . . . . . . . . . Chaplinsky v. New Hampshire . . . . . . . . . . . . . . . . Chicago, Burlington, and Quincy Railroad Co. v. Chicago . . Chicago v. Morales . . . . . . . . . . . . . . . . . . . . . Chimel v. California . . . . . . . . . . . . . . . . . . . . . Church of Lukumi Babalu Aye v. Hialeah . . . . . . . . . . Cohen v. California . . . . . . . . . . . . . . . . . . . . . Cohen v. Cowles Media Co. . . . . . . . . . . . . . . . . . Coker v. Georgia . . . . . . . . . . . . . . . . . . . . . . . Collector v. Day . . . . . . . . . . . . . . . . . . . . . . . Communist Party v. Subversive Activities Control Board . . . Cooper v. Aaron . . . . . . . . . . . . . . . . . . . . . . . Corrigan v. Buckley . . . . . . . . . . . . . . . . . . . . . Counselman v. Hitchcock . . . . . . . . . . . . . . . . . . Cox v. Louisiana . . . . . . . . . . . . . . . . . . . . . . Cox v. New Hampshire. . . . . . . . . . . . . . . . . . . . Craig v. Boren . . . . . . . . . . . . . . . . . . . . . . . . Cruikshank, United States v.. . . . . . . . . . . . . . . . . Cruzan v. Director, Missouri Department of Health . . . . . . Cummings v. Missouri. . . . . . . . . . . . . . . . . . . . Darby Lumber Co., United States v. . . . . . . . . . . . . . Davis v. Beason . . . . . . . . . . . . . . . . . . . . . . . DeJonge v. Oregon . . . . . . . . . . . . . . . . . . . . . . Dennis v. United States . . . . . . . . . . . . . . . . . . . DeShaney v. Winnebago County Department of Social Services Dolan v. City of Tigard . . . . . . . . . . . . . . . . . . . Duncan v. Louisiana . . . . . . . . . . . . . . . . . . . . Edmonson v. Leesville Concrete Co. . . . . . . . . . . . . . Edwards v. Aguillard . . . . . . . . . . . . . . . . . . . . Edwards v. California . . . . . . . . . . . . . . . . . . . . Edwards v. South Carolina . . . . . . . . . . . . . . . . . Eichman, United States v. . . . . . . . . . . . . . . . . . . Eisenstadt v. Baird . . . . . . . . . . . . . . . . . . . . . xxviii

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Table of Contents

Elfbrandt v. Russell . . . . . . . . . . . . . . . . . . . . . . . Elrod v. Burns . . . . . . . . . . . . . . . . . . . . . . . . . . Employment Division, Department of Human Resources v. Smith . Engel v. Vitale . . . . . . . . . . . . . . . . . . . . . . . . . . Epperson v. Arkansas . . . . . . . . . . . . . . . . . . . . . . Escobedo v. Illinois. . . . . . . . . . . . . . . . . . . . . . . . Everson v. Board of Education of Ewing Township . . . . . . . . Feiner v. New York . . . . . . . . . . . . . . . . . . . . . . . . Ferguson v. City of Charleston . . . . . . . . . . . . . . . . . . First English Evangelical Lutheran Church of Glendale v. County of Los Angeles . . . . . . . . . . . . . . . . . . . . . . . . Florida v. Bostick . . . . . . . . . . . . . . . . . . . . . . . . Frank v. Mangum . . . . . . . . . . . . . . . . . . . . . . . . Frontiero v. Richardson . . . . . . . . . . . . . . . . . . . . . Frothingham v. Mellon . . . . . . . . . . . . . . . . . . . . . Fullilove v. Klutznick . . . . . . . . . . . . . . . . . . . . . . Furman v. Georgia . . . . . . . . . . . . . . . . . . . . . . . Gault, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . Gideon v. Wainwright . . . . . . . . . . . . . . . . . . . . . . Gitlow v. New York . . . . . . . . . . . . . . . . . . . . . . . Goldberg v. Kelly. . . . . . . . . . . . . . . . . . . . . . . . . Gomillion v. Lightfoot . . . . . . . . . . . . . . . . . . . . . . Good News Club v. Milford Central School . . . . . . . . . . . . Graham v. Richardson. . . . . . . . . . . . . . . . . . . . . . Gregg v. Georgia . . . . . . . . . . . . . . . . . . . . . . . . . Griffin v. California . . . . . . . . . . . . . . . . . . . . . . . Griswold v. Connecticut . . . . . . . . . . . . . . . . . . . . . Grosjean v. American Press Co. . . . . . . . . . . . . . . . . . Hague v. Congress of Industrial Organizations. . . . . . . . . . Hammer v. Dagenhart . . . . . . . . . . . . . . . . . . . . . . Harris v. McRae. . . . . . . . . . . . . . . . . . . . . . . . . Harris v. New York . . . . . . . . . . . . . . . . . . . . . . . Helvering v. Davis. . . . . . . . . . . . . . . . . . . . . . . . Holden v. Hardy. . . . . . . . . . . . . . . . . . . . . . . . . Hudson v. Palmer . . . . . . . . . . . . . . . . . . . . . . . . Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston . . . . . . . . . . . . . . . . . . . . . . . . . . . Hurtado v. California . . . . . . . . . . . . . . . . . . . . . . Hustler Magazine v. Falwell . . . . . . . . . . . . . . . . . . . xxix

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The Bill of Rights

Illinois ex rel. McCollum v. Board of Education . . . Illinois v. Wardlow . . . . . . . . . . . . . . . . . Jacobellis v. Ohio. . . . . . . . . . . . . . . . . . . Jacobson v. Massachusetts . . . . . . . . . . . . . . Johnson v. Louisiana . . . . . . . . . . . . . . . . Johnson v. Santa Clara County . . . . . . . . . . . Johnson v. Zerbst. . . . . . . . . . . . . . . . . . . Kansas v. Hendricks . . . . . . . . . . . . . . . . . Kastigar v. United States. . . . . . . . . . . . . . . Katz v. United States. . . . . . . . . . . . . . . . . Katzenbach v. Morgan . . . . . . . . . . . . . . . . Kent v. Dulles . . . . . . . . . . . . . . . . . . . . Keystone Bituminous Coal Association v. DeBenedictis Klopfer v. North Carolina . . . . . . . . . . . . . . Korematsu v. United States . . . . . . . . . . . . . Kunz v. New York . . . . . . . . . . . . . . . . . . Kyllo v. United States . . . . . . . . . . . . . . . . Lanza, United States v. . . . . . . . . . . . . . . . Legal Tender Cases . . . . . . . . . . . . . . . . . Lemon v. Kurtzman . . . . . . . . . . . . . . . . . Leon, United States v. . . . . . . . . . . . . . . . . Lochner v. New York . . . . . . . . . . . . . . . . . Lone Wolf v. Hitchcock. . . . . . . . . . . . . . . . Lopez, United States v. . . . . . . . . . . . . . . . . Louisiana ex rel. Francis v. Resweber. . . . . . . . . Lovell v. City of Griffin . . . . . . . . . . . . . . . Loving v. Virginia . . . . . . . . . . . . . . . . . . Lucas v. South Carolina Coastal Council . . . . . . Lynch v. Donnelly . . . . . . . . . . . . . . . . . . McCleskey v. Kemp. . . . . . . . . . . . . . . . . . McCray v. United States . . . . . . . . . . . . . . . McCulloch v. Maryland . . . . . . . . . . . . . . . McKeiver v. Pennsylvania . . . . . . . . . . . . . . Mallory v. United States . . . . . . . . . . . . . . . Malloy v. Hogan . . . . . . . . . . . . . . . . . . Mapp v. Ohio . . . . . . . . . . . . . . . . . . . . Marshall v. Barlow’s. . . . . . . . . . . . . . . . . Maryland v. Buie . . . . . . . . . . . . . . . . . . Maryland v. Craig. . . . . . . . . . . . . . . . . . xxx

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506 507 508 508 509 510 511 512 512 513 514 515 516 517 518 520 520 521 522 523 524 525 527 528 529 529 530 531 532 532 534 535 536 537 538 538 540 540 541

Table of Contents

Massachusetts v. Mellon . . . . . . . . . . . . . . . . . . Massiah v. United States. . . . . . . . . . . . . . . . . . Masson v. New Yorker Magazine . . . . . . . . . . . . . . Maxwell v. Dow . . . . . . . . . . . . . . . . . . . . . . Memoirs v. Massachusetts . . . . . . . . . . . . . . . . . Meyer v. Nebraska . . . . . . . . . . . . . . . . . . . . . Miami Herald Publishing Co. v. Tornillo . . . . . . . . . Michigan Department of State Police v. Sitz . . . . . . . . Minersville School District v. Gobitis . . . . . . . . . . . . Minnesota v. Carter . . . . . . . . . . . . . . . . . . . . Miranda v. Arizona . . . . . . . . . . . . . . . . . . . . Missouri v. Holland . . . . . . . . . . . . . . . . . . . . Moore v. City of East Cleveland . . . . . . . . . . . . . . Moore v. Dempsey . . . . . . . . . . . . . . . . . . . . . Morehead v. New York ex rel. Tipaldo . . . . . . . . . . . Mugler v. Kansas . . . . . . . . . . . . . . . . . . . . . Mulford v. Smith . . . . . . . . . . . . . . . . . . . . . Munn v. Illinois. . . . . . . . . . . . . . . . . . . . . . Murdock v. Pennsylvania . . . . . . . . . . . . . . . . . Murphy v. Waterfront Commission of New York . . . . . . Murray’s Lessee v. Hoboken Land and Improvement Co. . . National Association for the Advancement of Colored People v. Alabama . . . . . . . . . . . . . . . . . . . . . . . National Association for the Advancement of Colored People v. Button . . . . . . . . . . . . . . . . . . . . . . . . National Endowment for the Arts v. Finley . . . . . . . . . National League of Cities v. Usery . . . . . . . . . . . . . National Treasury Employees Union v. Von Raab . . . . . Near v. Minnesota . . . . . . . . . . . . . . . . . . . . . Nebbia v. New York . . . . . . . . . . . . . . . . . . . . Nebraska Press Association v. Stuart . . . . . . . . . . . . New York State Club Association v. City of New York . . . . New York Times Co. v. Sullivan . . . . . . . . . . . . . . New York Times Co. v. United States . . . . . . . . . . . . New York v. Belton. . . . . . . . . . . . . . . . . . . . . New York v. Ferber . . . . . . . . . . . . . . . . . . . . . Nguyen v. Immigration and Naturalization Service . . . . Norris v. Alabama . . . . . . . . . . . . . . . . . . . . . Noto v. United States. . . . . . . . . . . . . . . . . . . . xxxi

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561 562 563 564 565 566 566 567 568 569 572 572 574 575 575

The Bill of Rights

O’Gorman and Young v. Hartford Fire Insurance Co. . Olmstead v. United States . . . . . . . . . . . . . . . Orr v. Orr . . . . . . . . . . . . . . . . . . . . . . . Osborne v. Ohio . . . . . . . . . . . . . . . . . . . . Pacific Mutual Life Insurance Co. v. Haslip . . . . . . Palko v. Connecticut . . . . . . . . . . . . . . . . . . Payne v. Tennessee . . . . . . . . . . . . . . . . . . . Payton v. New York . . . . . . . . . . . . . . . . . . Penn Central Transportation Co. v. City of New York. . Penry v. Lynaugh . . . . . . . . . . . . . . . . . . . Personnel Administrator of Massachusetts v. Feeney . . Pierce v. Society of Sisters . . . . . . . . . . . . . . . . Plyler v. Doe . . . . . . . . . . . . . . . . . . . . . . Pointer v. Texas . . . . . . . . . . . . . . . . . . . . Powell v. Alabama . . . . . . . . . . . . . . . . . . . Presser v. Illinois. . . . . . . . . . . . . . . . . . . . Printz v. United States . . . . . . . . . . . . . . . . . R.A.V. v. City of St. Paul . . . . . . . . . . . . . . . Red Lion Broadcasting Co. v. Federal Communications Commission . . . . . . . . . . . . . . . . . . . . Reed v. Reed . . . . . . . . . . . . . . . . . . . . . . Regents of the University of California v. Bakke . . . . Reno v. American Civil Liberties Union . . . . . . . . Reynolds v. United States . . . . . . . . . . . . . . . Richmond Newspapers v. Virginia . . . . . . . . . . . Richmond v. J. A. Croson Co. . . . . . . . . . . . . . Robel, United States v. . . . . . . . . . . . . . . . . . Roberts v. United States Jaycees. . . . . . . . . . . . . Robinson v. California. . . . . . . . . . . . . . . . . Rochin v. California . . . . . . . . . . . . . . . . . . Roe v. Wade . . . . . . . . . . . . . . . . . . . . . . Romer v. Evans . . . . . . . . . . . . . . . . . . . . Ross, United States v. . . . . . . . . . . . . . . . . . Rostker v. Goldberg . . . . . . . . . . . . . . . . . . Roth v. United States . . . . . . . . . . . . . . . . . Rummel v. Estelle . . . . . . . . . . . . . . . . . . . Runyon v. McCrary . . . . . . . . . . . . . . . . . . Rust v. Sullivan . . . . . . . . . . . . . . . . . . . . Rutan v. Republican Party of Illinois . . . . . . . . . xxxii

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Table of Contents

Schenck v. United States . . . . . . . . . . . . . . . . . . . Scott v. Sandford . . . . . . . . . . . . . . . . . . . . . . Selective Draft Law Cases . . . . . . . . . . . . . . . . . . Shapiro v. Thompson . . . . . . . . . . . . . . . . . . . . Sherbert v. Verner . . . . . . . . . . . . . . . . . . . . . . Skinner v. Oklahoma . . . . . . . . . . . . . . . . . . . . Skinner v. Railway Labor Executives Association . . . . . . . Slaughterhouse Cases . . . . . . . . . . . . . . . . . . . . Smyth v. Ames . . . . . . . . . . . . . . . . . . . . . . . . Solem v. Helm . . . . . . . . . . . . . . . . . . . . . . . . Stanford v. Kentucky. . . . . . . . . . . . . . . . . . . . . Stanley v. Georgia . . . . . . . . . . . . . . . . . . . . . . Steward Machine Co. v. Davis . . . . . . . . . . . . . . . . Stone v. Powell. . . . . . . . . . . . . . . . . . . . . . . . Strauder v. West Virginia . . . . . . . . . . . . . . . . . . Stromberg v. California . . . . . . . . . . . . . . . . . . . Talton v. Mayes . . . . . . . . . . . . . . . . . . . . . . . Taylor v. Louisiana . . . . . . . . . . . . . . . . . . . . . Tennessee v. Garner . . . . . . . . . . . . . . . . . . . . . Terminiello v. Chicago . . . . . . . . . . . . . . . . . . . . Terry v. Ohio . . . . . . . . . . . . . . . . . . . . . . . . Texas v. Johnson . . . . . . . . . . . . . . . . . . . . . . . Thornhill v. Alabama . . . . . . . . . . . . . . . . . . . . Time v. Hill . . . . . . . . . . . . . . . . . . . . . . . . . Tinker v. Des Moines Independent Community School District Trop v. Dulles . . . . . . . . . . . . . . . . . . . . . . . . Twining v. New Jersey . . . . . . . . . . . . . . . . . . . . Tyson v. Banton . . . . . . . . . . . . . . . . . . . . . . . Ullman v. United States . . . . . . . . . . . . . . . . . . . United States District Court, United States v. . . . . . . . . . Ursery, United States v. . . . . . . . . . . . . . . . . . . . Wade, United States v. . . . . . . . . . . . . . . . . . . . . Wallace v. Jaffree . . . . . . . . . . . . . . . . . . . . . . Walz v. Tax Commission . . . . . . . . . . . . . . . . . . . Washington v. Davis. . . . . . . . . . . . . . . . . . . . . Washington v. Glucksberg . . . . . . . . . . . . . . . . . . Watkins v. United States . . . . . . . . . . . . . . . . . . . Weeks v. United States . . . . . . . . . . . . . . . . . . . . Weems v. United States. . . . . . . . . . . . . . . . . . . . xxxiii

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The Bill of Rights

Weinberger v. Wiesenfeld . . . . . . . . . . . . . . West Coast Hotel Co. v. Parrish . . . . . . . . . . Whitney v. California . . . . . . . . . . . . . . . Whren v. United States. . . . . . . . . . . . . . . Williams v. Florida . . . . . . . . . . . . . . . . Williams v. Mississippi . . . . . . . . . . . . . . Wisconsin v. Mitchell . . . . . . . . . . . . . . . Wisconsin v. Yoder. . . . . . . . . . . . . . . . . Wolf v. Colorado . . . . . . . . . . . . . . . . . . Wolff Packing Co. v. Court of Industrial Relations . Woodson v. North Carolina . . . . . . . . . . . . Yates v. United States . . . . . . . . . . . . . . . Young v. American Mini Theatres . . . . . . . . . Younger v. Harris . . . . . . . . . . . . . . . . . Zadvydas v. Davis . . . . . . . . . . . . . . . . . Zorach v. Clauson . . . . . . . . . . . . . . . . . Zurcher v. The Stanford Daily . . . . . . . . . . .

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647 648 649 650 651 652 653 654 655 656 656 657 658 659 660 661 662

Appendices The Declaration of Independence . . . . . . . . . The Constitution of the United States of America Amendments to the U.S. Constitution . . . . . . . Supreme Court Justices and the Bill of Rights . . . Time Line . . . . . . . . . . . . . . . . . . . . . . Glossary . . . . . . . . . . . . . . . . . . . . . . . Bibliography . . . . . . . . . . . . . . . . . . . . .

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Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 785

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The Cases

Abington School District v. Schempp / 403

Abington School District v. Schempp Citation: 374 U.S. 203 Date: June 17, 1963 Issue: School prayer Relevant amendment: First Significance: This decision reaffirmed the Supreme Court’s 1962 ruling that made it unconstitutional for public schools to sponsor prayers or Bible readings. Writing for an 8-1 majority, Justice Tom C. Clark reiterated the Supreme Court’s position in Engel v. Vitale (1962) that the government could not promote religion by sponsoring public school prayers or Bible readings. In Abington, the American Civil Liberties Union helped the Schempps challenge a Pennsylvania law requiring public schools to begin each day by reading Bible verses. In the companion case, Murray v. Curlett (1963), nationally known atheist Madalyn Murray (later O’Hair) attacked a Baltimore city statute providing for a daily reading in the city schools of the Lord’s Prayer or a passage from the Bible. Unlike the situation in Engel, the government did not write the prayer and used the readings without comment, but the Court still found both laws an impermissible promotion of religion. Although two new justices participated in Abington, the outcome remained the same Writing for the majority in Abingdon, Justice as Engel. Justice Potter Stewart Tom C. Clark argued that government should wrote the Court’s lone disnot promote religion by sponsoring public school sent, arguing that the free exprayers or Bible readings. (Collection of the Supreme Court of the United States) ercise clause should be given

404 / Adair v. United States

The Cases

preferred status to avoid inherent conflicts with the establishment clause. The Court sought to minimize criticism by having Clark, a politically moderate southern Presbyterian, write the Court’s opinion and Justices Arthur J. Goldberg (Jewish) and William J. Brennan, Jr. (Roman Catholic) write strong concurrences, but widespread public criticism continued from religious groups accusing the Court of interfering with religion. Richard L. Wilson

Adair v. United States Citation: 208 U.S. 161 Date: January 27, 1908 Issue: Freedom of contract Relevant amendment: Fifth Significance: The Supreme Court severely limited the extent to which the federal government could protect the rights of workers. The Erdman Act of 1898 made it illegal to discharge or punish employees for union activity. Its main purpose was to prohibit yellow dog contracts, which required workers to agree not to join a labor union. By a 7-2 vote, the Supreme Court ruled that the Erdman Act deprived persons of their substantive liberty guaranteed in the due process clause of the Fifth Amendment. Justice John Marshall Harlan, speaking for the majority, used the theory of freedom of contract, or the right of individuals to enter into labor agreements without governmental interference. In dissent, Justices Joseph McKenna and Oliver Wendell Holmes argued that the Constitution did not prohibit reasonable legislation promoting fairness in collective bargaining. In Coppage v. Kansas (1915), the Court used the Adair precedent to strike down state laws protecting workers’ rights to join unions. Progressives of the day were outraged by such decisions, while conservatives praised the Court for preventing class warfare. In 1937 the Court reversed the precedents of Coppage and Adair when it upheld the constitutionality of the Wagner Act (1935), a New Deal law protecting the right of collective bargaining. Thomas T. Lewis

The Cases

Adamson v. California / 405

Adamson v. California Citation: 332 U.S. 46 Date: June 23, 1947 Issue: Incorporation doctrine Relevant amendments: Fifth, Fourteenth Significance: Reaffirming that the Fifth Amendment privilege against selfincrimination was not applicable to the states, the Supreme Court reiterated that the due process clause of the Fourteenth Amendment incorporated only those procedural rights considered essential to a fair trial. When tried for murder, Admiral D. Adamson did not testify, because of his prior criminal record. The district attorney, as permitted by applicable state law at the time, told the jury that Adamson’s refusal to testify was a good reason to infer his guilt. The Supreme Court had earlier permitted this practice in Twining v. New Jersey (1908). After Adamson was convicted, his attorney argued that permitting the prosecutorial comment was a violation of the Fifth Amendment. A 5-4 majority of the Court upheld the conviction, based on the longstanding doctrine that the Fourteenth Amendment did not require the states to honor all the privileges and protections of the Bill of Rights. Adamson is notable primarily because of Hugo L. Black’s long Justice Wiley B. Rutledge, Jr., along with dissent, which used historical Justice Frank Murphy, departed from Hugo data to argue for the “total inBlack’s dissent in Adamson in contending corporation” of the entire Bill that the Court should not restrict the of Rights into the Fourteenth meaning of due process to the rights Amendment. Justice Felix Frankcontained in the first eight amendments. (Library of Congress) furter’s concurring opinion de-

406 / Adarand Constructors v. Peña

The Cases

fended the alternative theory of “selective incorporation.” Although subsequent Courts have never accepted Black’s perspective, the privilege against self-incrimination was made binding on the states in Malloy v. Hogan (1964). This privilege was interpreted to prohibit prosecutorial comment on a defendant’s failure to testify in Griffin v. California (1965). Thomas T. Lewis

Adarand Constructors v. Peña Citation: 515 U.S. 200 Date: June 12, 1995 Issue: Affirmative action Relevant amendments: Fifth, Fourteenth Significance: The Supreme Court required lower courts to use the standards of “strict scrutiny” when examining any preferences based on race. The Federal Highway Division provided premiums to general contractors for awarding contracts to firms owned by members of racial minorities recognized as having experienced social and economic disadvantages. Although the Adarand Constructors company was the lowest bidder for one construction project, the award was made to a Hispanic-owned company. Adarand sued, claiming that this race-based preference violated the Fifth Amendment guarantee of equal protection. In Richmond v. J. A. Croson Co. (1989), the Supreme Court had required “strict scrutiny” on racial classifications at the state and local levels, but it had applied “intermediate scrutiny” for federal programs in Metro Broadcasting v. Federal Communications Commission (1990). The court of appeals used the more lenient standard and upheld the government’s policy. However, the Supreme Court overturned the lower court’s decision. Speaking for a 5-4 majority, Justice Sandra Day O’Connor held that all racial classifications must be analyzed under the strict scrutiny standard, which required such classifications to be “narrowly tailored measures that further compelling governmental objectives.” Contradicting what many authorities had written, O’Connor denied that strict scrutiny would always be “fatal in fact.” Although the Adarand decision did not end all affirmative action, it did increase the probability that federal programs involving preferences would be challenged and invalidated. Thomas T. Lewis

The Cases

Adkins v. Children’s Hospital / 407

Adderley v. Florida Citation: 385 U.S. 39 Date: November 14, 1966 Issue: Freedom of assembly Relevant amendment: First Significance: Supreme Court Justice Hugo L. Black underscored a distinction between speech and action in upholding the conviction of civil rights demonstrators. Justice Hugo L. Black, writing for a five-member majority, upheld the conviction of civil rights protesters who demonstrated directly on the grounds of a county jail in Tallahassee, Florida, where demonstrations had never been permitted. Reading the First Amendment literally, Black found that it allowed a government to protect jails and courthouses from demonstrations if it did so consistently. Assembly, he argued, is not an absolute right but conditioned by the inclusion of the word “peaceably” in the First Amendment. Although often regarded as a civil libertarian, Black disappointed many liberals with his opinion in this case. His critics failed to perceive that his so-called “absolute standard” was logically compatible with a distinction between speech, which was absolutely protected, and assembly, which was limited by the Constitution’s use of the word “peaceably” and could never be so absolutely protected. Justice William O. Douglas, Black’s frequent partner in dissent, disagreed with him in this case and was joined by Chief Justice Earl Warren and Justices William J. Brennan, Jr., and Abe Fortas. Richard L. Wilson

Adkins v. Children’s Hospital Citation: 261 U.S. 525 Date: April 9, 1923 Issue: Minimum-wage laws Relevant amendment: Fifth

408 / Adkins v. Children’s Hospital

The Cases

Significance: This decision, in which the Supreme Court struck down a minimum-wage law, was a prime example of the Court’s commitment to the freedom of contract doctrine and laissez-faire principles. In 1918 Congress established a board with authority to set minimum wages for women and minors in the District of Columbia. The stated purpose of the law was to protect women and minors from conditions of poverty that would be “detrimental to their health and morals.” Children’s Hospital, a private institution paying less than the minimum wage, argued that the law was a violation of the due process clause of the Fifth Amendment. In a 6-3 vote, the Supreme Court agreed with the hospital’s position. Justice George Sutherland, speaking for the majority, based the ruling on two doctrines: substantive due process and freedom of contract. Although the government could exercise its police power to prevent specific evils, freedom of contract was “the general rule and restraint the exception.” Sutherland found that the law was demeaning to women, especially in view of the political equality that had resulted from the Nineteenth Amendment. In addition, any law that considered only the needs of workers was unjust to the needs of the employer. Chief Justice William H. Taft, usually a defender of substantive due process, dissented in the Adkins case. He emphasized that the Court had earlier approved of laws mandating a maximum-hour workday and a time-and-a-half An advocate of selective application of the first provision for overtime, and he eight amendments to the states, Justice George Sutherland based his opinion in the Adkins case argued that there were no funon the doctrines of substantive due process and damental differences between freedom of contract. (Library of Congress) regulations of hours and of

The Cases

Agostini v. Felton / 409

wages. He insisted that the Court should not overturn laws that were simply considered to be based on “unwise or unsound” economic theories. In 1937 a majority of the justices agreed with Taft’s dissent in West Coast Hotel Co. v. Parrish. Thomas T. Lewis

Agostini v. Felton Citation: 117 S.Ct. 1997 Date: June 23, 1997 Issue: Establishment of religion Relevant amendment: First Significance: The Supreme Court held that the establishment clause did not prevent the use of public funds for sending public school teachers into parochial schools to provide remedial services. In Aguilar v. Felton (1985), the Supreme Court voted five to four to strike down a program in which public school teachers went to private schools to provide a variety of secular services for disadvantaged students. Emphasizing the separationist viewpoint, the majority explained that the program might convey a message of governmental endorsement of religion. After Aguilar, New York continued the program by providing remedial services in parked vans near the private schools. In 1995 the parents of affected students went to federal court asking for the reversal of Aguilar, which appeared inconsistent with several recent decisions. In Agostini v. Felton, a 5-4 majority of the justices agreed with the petitioners and overturned Aguilar. Using an interpretation of the Lemon test (developed in Lemon v. Kurtzman, 1971) that favored accommodationists, Justice Sandra Day O’Connor argued that the placing of public employees in parochial schools did not result in any state-sponsored indoctrination nor did it constitute any symbolic union between government and religion. In dissent, Justice Ruth Bader Ginsburg argued that it was impossible to draw a clear line between religious and secular instruction in religious schools. Thomas T. Lewis

410 / Albertson v. Subversive Activities Control Board

The Cases

Albertson v. Subversive Activities Control Board Citation: 382 U.S. 70 Date: November 15, 1965 Issue: Freedom of assembly and association Relevant amendment: First Significance: In this case, one of a series of decisions undermining 1950’s anticommunist legislation, the Supreme Court struck down registration provisions of the 1950 McCarran Act. The Supreme Court unanimously ruled that the Subversive Activities Control Board could not prosecute Communist Party members for failing to register with the board as mandated by the McCarran Act of 1950. The Court held that forced registration meant self-incrimination in other prosecutions. Even provisions granting registrants immunity from prosecution were inadequate to protect Communist Party members from violations of their Fifth Amendment right against self-incrimination. In an earlier decision, Communist Party v. Subversive Activities Control Board (1961), the Court had upheld the registration provisions of the act but declined to reach a conclusion on whether anyone could be prosecuted for refusing to register. Many legal authorities correctly surmised that the Court might not actually allow prosecutions. When enforcement of the act was attempted, the Court blocked it. Recognizing that the act was unenforceable, President Richard M. Nixon and Congress allowed the board to expire in the early 1970’s. Richard L. Wilson

Allegheny County v. American Civil Liberties Union Greater Pittsburgh Chapter Citation: 492 U.S. 573 Date: July 3, 1989 Issue: Separation of church and state Relevant amendment: First

The Cases

American Communications Association v. Douds / 411

Significance: The Supreme Court held that a Christmas display focusing predominantly on religious symbols violated the establishment clause of the First Amendment. In Lynch v. Donnelly (1984), the Supreme Court voted five to four to approve a government-sponsored nativity scene that also included a reindeer, a clown, and a Santa Claus house. The majority found that the display was in conformity with the demands of the three-part Lemon test established in Lemon v. Kurtzman (1971). Justice Sandra Day O’Connor joined the majority because she concluded that the effect of the display was not to convey a message of either endorsing or disapproving a religion. The Allegheny County case involved two holiday displays located on public property in Pittsburgh. The first was a pious nativity scene without any secular symbols. The judges voted five to four that this display was unconstitutional. Justice Harry A. Blackmun’s opinion, which O’Connor joined, was based on the “no endorsement of religion” standard. The same 5-4 majority approved of the second display, a menorah placed next to a Christmas tree. Blackmun asserted that the second display did not promote any religious message. The requirement for including some secular symbols in a seasonal display is sometimes called the “Christmas tree rule.” Justice Anthony M. Kennedy, a dissenter, wanted to rule on the basis of whether there was any “coercion.” The case illustrated the deep divisions of the justices when interpreting the establishment clause. Thomas T. Lewis

American Communications Association v. Douds Citation: 339 U.S. 382 Date: May 8, 1950 Issues: Freedom of speech; freedom of assembly; interstate commerce Relevant amendment: First Significance: At the height of the Cold War, the Supreme Court upheld the portions of the Taft-Hartley Act (1947) that required labor union

412 / Argersinger v. Hamlin

The Cases

leaders to sign an affidavit affirming that they were not presently members of the Communist Party. The Communications union, which had a record of some Communist Party infiltration, charged that the registration provisions of the TaftHartley Act of 1947 violated the freedoms provided by the First Amendment. Speaking for a 5-1 majority, Chief Justice Fred M. Vinson interpreted the law as an attempt to prevent disruptive strikes in interstate commerce, a legitimate interest of Congress. Using an ad hoc balancing approach, Vinson made a distinction between freedom of speech, protected by the First Amendment, and political association, a form of action that deserved less protection than the communication of ideas. Douds may be contrasted with United States v. Brown (1965), in which the Supreme Court struck down a more restrictive law that prohibited people from serving as labor leaders if they had been affiliated with the Communist Party during the previous five years. Thomas T. Lewis

Argersinger v. Hamlin Citation: 407 U.S. 25 Date: June 12, 1972 Issue: Right to counsel for indigent defendants Relevant amendment: Sixth Significance: The Supreme Court ruled that the Sixth and Fourteenth Amendments mandate that states must provide a poor defendant with a lawyer at the time of trial if the defendant could be imprisoned for any period of time. In Gideon v. Wainwright (1963), the Supreme Court held that states must provide counsel for indigent defendants in felony cases. However, it was not clear whether this expanded right to an attorney applied to misdemeanor cases. Then the Court decided in 1968 that defendants had a right to a jury trial when they faced incarceration for six months or more. In this context, Argersinger was not provided counsel when he was convicted and sentenced to three months in jail for the misdemeanor of carrying a concealed weapon.

The Cases

Ballard v. United States / 413

By a 9-0 vote, the Court reversed Argersinger’s conviction. Writing for the majority, Justice William O. Douglas developed the one-day rule, which triggers the right to counsel whenever a person is deprived of liberty for even one day. The Argersinger decision was ambiguous about whether the right to counsel applied whenever a defendant was charged with a crime that could result in a jail term. The Court clarified the issue in Scott v. Illinois (1979), holding that counsel must be provided only if conviction would actually result in imprisonment. Thomas T. Lewis

Ballard v. United States Citation: 329 U.S. 187 Date: December 9, 1946 Issue: Sex discrimination Relevant amendment: Sixth Significance: The Supreme Court held that women may not be excluded from jury service in federal trials taking place in states where women were eligible for service under state law. After Edna Ballard, a leader of the “I Am” movement, was convicted for fraudulent use of the mails, she appealed her conviction on the grounds that the federal courts in California systematically excluded women from juries. At the time federal law required federal courts to maintain the same jury requirements as those of state courts. Although California made women eligible for juries, the state courts did not summon women to serve, and the federal courts in California followed the same practice. By a 5-4 vote, the Supreme Court reversed Ballard’s conviction. Speaking for the majority, Justice William O. Douglas reasoned that the various federal statutes on the topic demonstrated that Congress desired juries to represent a cross section of the community. Because women were eligible for jury service under California law, they must be included in the federal trial juries. Although the Ballard decision was an interpretation of congressional statutes, its reasoning was used to arrive at basically the same requirement under the Sixth Amendment in Taylor v. Louisiana (1975). Thomas T. Lewis

414 / Barenblatt v. United States

The Cases

Barenblatt v. United States Citation: 360 U.S. 109 Date: June 8, 1959 Issues: Congressional power of investigation; freedom of association Relevant amendment: First Significance: The Supreme Court upheld a conviction for contempt of Congress, ruling that the public’s interest in opposing communist infiltration outweighed a person’s limited First Amendment right to refuse to answer questions. When Lloyd Barenblatt, a college professor, appeared before the House Un-American Activities Committee, he refused to answer questions that dealt with his political beliefs and associations. Rather than relying on the Fifth Amendment, he alleged that the questions infringed on his right to free expression under the First Amendment. The Supreme Court had appeared to give some support to such a claim in Watkins v. United States (1957). Barenblatt was convicted of contempt of Congress. Speaking for a 5-4 majority, Justice John Marshall Harlan II used a balancing of interests approach. Although Harlan acknowledged that the First Amendment in some circumstances protects a person “from being compelled to disclose his associational relationships,” he concluded that Barenblatt’s particular claim was outweighed by the public’s interest in exposing communist subversion. In contrast to the situation in Watkins, Harlan found that the subcommittee had explained the relevance of the questions and had not attempted to pillory witnesses. The Barenblatt decision was never overruled. In Eastland v. United States Servicemen’s Club (1975), the Court strengthened the prerogatives of congressional committees by expansively reading the speech or debate clause. When dealing with state investigations, on the other hand, the Court has tended to demonstrate greater concern for protecting First Amendment values. Thomas T. Lewis

The Cases

Barnes v. Glen Theatre / 415

Barker v. Wingo Citation: 407 U.S. 514 Date: June 22, 1972 Issue: Right to speedy trial Relevant amendment: Sixth Significance: To decide whether a trial was delayed for an unreasonable period of time, the Supreme Court established a balancing test with four factors: length of the delay, reasons for the delay, the defendant’s assertion of the right to a speedy trial, and prejudice to the defendant from the delay. Two defendants, Barker and Manning, were charged with a brutal murder. Because the case against Manning was very strong, he was tried first, then he was to be a witness in Barker’s trial. As a result of difficulties in prosecuting Manning, the trial of Barker was delayed for five years from the time of his arrest. After being found guilty, Barker appealed on the grounds that the long delay violated his right to a speedy trial. His lawyers referred to Dickey v. Florida (1970), in which an eight-year delay had been found to be unconstitutional. The Supreme Court unanimously rejected Barker’s claim. Justice Lewis F. Powell, Jr.’s opinion for the majority was based on a balancing test. The delay of the trial, while long, was not unreasonable in view of the unavailability of an important witness; the defendant had been slow to register objections to the delay; and there was no evidence that the delay caused any prejudice in the trial. Much of the public disagreed with the Barker opinion. In 1974 Congress passed the Speedy Trial Act, requiring federal trials to take place one hundred days after an arrest. Most states have enacted similar laws. Thomas T. Lewis

Barnes v. Glen Theatre Citation: 501 U.S. 560 Date: June 21, 1991 Issue: Expressive conduct Relevant amendment: First

416 / Barron v. Baltimore

The Cases

Significance: While reaffirming that nude dancing is expressive conduct protected by the First Amendment, the Supreme Court nevertheless upheld a state’s general ban on complete nudity in public places. In Schad v. Borough of Mount Ephraim (1981), the Supreme Court held that nonobscene nude dancing was a protected form of expression that could not be entirely prohibited throughout an entire community. Indiana’s public decency statute prohibited complete nudity in all public places. Two adult-entertainment establishments in South Bend, Indiana, wanted to feature “totally nude dancing,” but the decency statute required that the dancers wear pasties and G-strings. Although the Court upheld the law by a 5-4 majority, Chief Justice William H. Rehnquist spoke for a plurality when he argued that the law was not expressly designed to prevent erotic expression and that the law only placed an incidental limitation on expression. The statute, he wrote, was essentially a time, place, and manner regulation, in keeping with the test set forth in United States v. O’Brien (1968). Observing that nudity had historically been proscribed by common law, he concluded that a ban on nudity furthered the state’s substantial interest in protecting public morality and public order. In a concurrence, Justice David H. Souter argued that the law legitimately prevented secondary effects of nude dancing, such as prostitution. Justice Byron R. White’s dissent argued that the very purpose of the law was to prohibit the expression of a nonobscene erotic message; therefore, the law should be scrutinized with the compelling state interest test. Thomas T. Lewis

Barron v. Baltimore Citation: 32 U.S. 243 Date: February 16, 1833 Issues: Incorporation doctrine; property rights Relevant amendment: Fifth Significance: The Supreme Court held that the Bill of Rights did not protect citizens from actions by their state governments, a ruling that stood largely unaltered until the 1920’s.

The Cases

Barron v. Baltimore / 417 In Barron, one of his last decisions as chief justice, John Marshall limited application of the Bill of Rights to the federal government, exempting state governments. (Collection of the Supreme Court of the United States)

The First Amendment begins with the word “Congress,” apparently making the federal government its only target, but none of the other amendments in the Bill of Rights include this language. John Barron, a Baltimore businessperson, sought to test the possibility that the Fifth Amendment in the Bill of Rights might protect him from actions of the Maryland state government. The city of Baltimore repaired the streets and dumped the leftover construction materials into the water near the wharf Barron owned, raising the bottom of the bay so much that ships could no longer dock there, depriving Barron of his property interest in his livelihood without due process or just compensation. Barron sued Baltimore to recover damages, but Baltimore was a subunit of Maryland, whose constitution, unlike the U.S. Constitution, did not provide a guarantee against eminent domain. Because Barron could not succeed in Maryland courts, he turned to the federal courts. However, the Supreme Court ruled that the Fifth Amendment applied only to the federal government and not to the states and that therefore Barron was not entitled to protection against state action under this amendment. After Barron, the courts applied this ruling consistently. Although the passage of the Fourteenth Amendment would seem to have reversed this decision, the Court did not initially agree, essentially continuing Barron in force until justices holding different views began to serve on the Court in the 1920’s. Gradually, the incorporation doctrine effectively overturned the principles set out in Barron. Richard L. Wilson

418 / Bates v. State Bar of Arizona

The Cases

Bates v. State Bar of Arizona Citation: 433 U.S. 350 Date: June 27, 1977 Issue: Commercial speech Relevant amendment: Sixth Significance: The Supreme Court held that states could not prohibit lawyers from advertising the prices of routine legal services. In 1974 lawyers John Bates and Van O’Steen placed an advertisement in a newspaper that announced “legal services at very reasonable fees” and listed several examples. Because the Arizona bar association’s ethics code prohibited such advertisements, the two lawyers were censored and suspended from legal practice for one week. They appealed on First Amendment grounds. Meanwhile, the Supreme Court, in Virginia Pharmacy Board v. Virginia Citizens Consumer Council (1976), struck down a state law that made it illegal for pharmacists to advertise the prices of prescription medications. For the Court, Justice Harry A. Blackmun explained that the First Amendment protected the right of pharmacists to communicate truthful information about lawful products and services. In Bates, the justices voted five to four to extend the Virginia Pharmacy Board principles to commercial advertising by lawyers. Justice Blackmun’s majority opinion held that the protection of commercial speech under the First Amendment outweighed any possible “adverse effect on professionalism.” He noted that the decision did not endorse in-person solicitation of clients or advertisements about the quality of legal services. Also, he recognized the need to restrain false, deceptive, or misleading advertising as well as the legitimacy of reasonable time, place, and manner regulations. After Bates, the Court endorsed several restrictions on the commercial speech of lawyers. In Florida Bar v. Went for It (1995), for example, the Court upheld the Florida bar’s prohibition of written solicitations to personal injury victims for thirty days following an accident or natural disaster. Thomas T. Lewis

The Cases

Batson v. Kentucky / 419

Batson v. Kentucky Citation: 476 U.S. 79 Date: April 30, 1986 Issue: Jury composition Relevant amendments: Sixth, Fourteenth Significance: The Supreme Court ruled that the equal protection clause of the Fourteenth Amendment forbids a prosecutor from using peremptory challenges to remove potential jurors because of their race. James Batson, an African American, was indicted for second-degree burglary. When the judge conducted a voir dire examination (preliminary check of suitability and qualifications) of the potential jurors, the prosecutor used his peremptory challenges to remove all four African Americans from the panel, resulting in an all-white jury. The Supreme Court had refused to disturb the same development in Swain v. Alabama (1965). After Batson’s conviction, nevertheless, his lawyers asserted that the process of jury selection violated his rights to equal protection and to a jury drawn from a cross section of the community. By a 7-2 majority, the Court accepted Batson’s claim. Speaking for the majority, Justice Lewis F. Powell, Jr., remanded the case and instructed the trial court to require the prosecutor to justify the exclusion of members of the defendant’s race from the jury. If the prosecutor were unable to give a racially neutral explanation, Batson’s conviction would have to be reversed. Powell’s opinion formulated a framework for future voir dire proceedings. The basic idea is that a pattern of exclusion based on race creates an inference of discrimination. Once such an inference is established, the prosecutor has the burden of showing that the peremptories are not discriminatory. Emphasizing that the Constitution does not guarantee a right to peremptory challenges, Powell wrote that potential jurors may not be eliminated simply because of the assumption that people of a particular race might be more sympathetic to a particular defendant. Thus, Powell’s opinion requires color-conscious rather than color-blind procedures in jury selection, and it tends to encourage the use of racial quotas. The Batson principles have been significantly expanded. In Powers v. Ohio (1991), the Court held that criminal defendants may object to racebased peremptory challenges even if the defendant and the excluded ju-

420 / Benton v. Maryland

The Cases

rors do not belong to the same race. Later that year, in Edmondson v. Leesville Concrete Co., the Court applied the Batson framework to the selection of juries in civil trials. In Georgia v. McCollum (1992), the Court decided that the Batson ruling applies to defense attorneys. In J. E. B. v. Alabama (1994), moreover, the Court held that the equal protection clause prohibits discrimination in jury selection on the basis of gender. Thomas T. Lewis

Benton v. Maryland Citation: 395 U.S. 785 Date: June 23, 1969 Issue: Double jeopardy Relevant amendment: Fifth Significance: The Supreme Court ruled the Fifth Amendment protection against double jeopardy applied to the states through the due process clause of the Fourteenth Amendment. In a 7-2 vote, the Supreme Court overturned Palko v. Connecticut (1937) and struck down Benton’s second conviction in Maryland courts as a violation of his Fifth Amendment rights. Justice Thurgood Marshall, in the opinion for the Court, stated that the double jeopardy provisions of the Fifth Amendment applied to the states through the incorporation doctrine of the Fourteenth Amendment, and therefore, a person who had been acquitted of a crime in a state court could not be tried again for the same crime. In Palko, the Court had allowed double jeopardy in Connecticut, saying that the only rights that applied to the states under the due process clause of the Fourteenth Amendment were those closely related to the concept of “ordered liberty.” In reversing Palko, the Court recognized that although it had earlier not believed that a double jeopardy conviction was a universally “shocking” violation of justice, a prohibition against double jeopardy was, in fact, a long-standing practice that was fundamental to the American system of justice. Richard L. Wilson

The Cases

Betts v. Brady / 421

Betts v. Brady Citation: 316 U.S. 455 Date: June 1, 1942 Issue: Right to counsel Relevant amendment: Sixth Significance: Until the Betts ruling was reversed in 1963, indigent criminal defendants in state trials did not have the constitutional right to a lawyer’s assistance. Betts, a poor defendant prosecuted for robbery in Maryland, asked his trial court to appoint a lawyer for his defense. The local policy, however, was to appoint counsel only in cases of murder or rape. After his conviction, Betts filed habeas corpus petitions, alleging that his rights under the Sixth Amendment had been violated. The lower courts rejected his petitions, based on the principle that the first eight amendments generally applied only to the federal government. The Supreme Court then granted certiorari. The issue before the Court was whether the right to counsel should be incorporated into the due process clause of the Fourteenth Amendment. The justices voted six to three to uphold the lower courts. Speaking for the majority, Owen J. Roberts noted that most states did not require appointment of counsel in all criminal trials, and he argued that counsel was not necessary for a fair trial in Betts’s circumstances. Counsel was required only in special sitIn his majority opinion in Betts, Justice uations such as Powell v. AlaOwen J. Roberts argued that counsel was bama (1932), when illiterate denot necessary for a fair trial in Betts’s fendants had been charged circumstances. (Collection of the Supreme Court of the United States) with a capital offense.

422 / Bigelow v. Virginia

The Cases

Three dissenters—Hugo L. Black, William O. Douglas, and Frank Murphy—argued that the constitutional right to counsel should be recognized in all criminal trials. In Gideon v. Wainwright (1963), the Court finally accepted the position of the dissenters. Thomas T. Lewis

Bigelow v. Virginia Citation: 421 U.S. 809 Date: June 16, 1975 Issue: Commercial speech Relevant amendment: First Significance: The Supreme Court declared that the First Amendment protects commercial advertising to “some degree” and overturned a state statute prohibiting advertisements of abortion services. In 1971 the Virginia Weekly of Charlottesville published an advertisement for an organization that helped women obtain legal abortions in the state of New York. The newspaper’s editor, Jeffrey Bigelow, was convicted for violating a state statute that made it a misdemeanor to encourage or help a woman to have an abortion. Bigelow argued that the statute infringed on his free press rights under the First Amendment. In response, the state referred to Valentine v. Chrestensen (1942), in which the Supreme Court ruled that the First Amendment placed no restrictions on governmental regulations of “purely commercial advertising.” By a 7-2 vote, the Court overturned the statute and greatly limited the Valentine ruling. Justice Harry A. Blackmun’s opinion for the Court emphasized that the spirit of the First Amendment favors the widespread dissemination of information and opinions. Blackmum noted that the advertisement contained truthful information about a legal service. The Court refused to decide the extent to which states might regulate commercial advertisements, especially those dealing with harmful activities. It was clear, nevertheless, that commercial speech merited a lesser degree of constitutional protection than political and religious speech. Subsequent to Bigelow, the Court issued a series of decisions, such as Bates v. State Bar of Arizona (1977), that continued to expand First Amendment protection for commercial advertising. In Forty-four Liquormart v. Rhode Island (1996), the Court struck down a state ban on the advertising

The Cases

Boerne v. Flores / 423

of alcoholic beverage prices, even though the Twenty-first Amendment gives states broad authority to regulate the sale of the product. Thomas T. Lewis

BMW of North America v. Gore Citation: 116 S.Ct. 1589 Date: May 20, 1996 Issues: Excessive damage awards; substantive due process Relevant amendments: Fifth, Fourteenth Significance: The Supreme Court held that a punitive damage award of five hundred times the amount of actual damages was “grossly excessive” and therefore contrary to the due process clause of the Fourteenth Amendment. After Ira Gore purchased a new BMW, he found that it had been repainted by the manufacturer. Alleging fraud according to Alabama law, Gore brought suit against BMW for failure to disclose a defect. He was awarded $4,000 in compensatory damages and $2 million in punitive damages. By a 5-4 margin, the Supreme Court found that BMW’s conduct was not egregious enough to justify such an extreme sanction. Writing for the Court, Justice John Paul Stevens emphasized that there must be a “reasonable relationship” between a punitive damages award and any conceivable harm that the plaintiff might suffer. In dissent, Justice Antonin Scalia criticized the expansion of the substantive due process doctrine to include jury decisions in civil suits. Thomas T. Lewis

Boerne v. Flores Citation: No. 95-2074 Date: June 25, 1997 Issues: Separation of powers; freedom of religion Relevant amendment: First Significance: In striking down the Religious Freedom Restoration Act of 1993, the Supreme Court declared that congressional enforcement

424 / Bolling v. Sharpe

The Cases

powers in the Fourteenth Amendment may not be used to override the Court’s interpretations of the Constitution. In Sherbert v. Verner (1963), the Supreme Court required a compelling state interest as justification for any indirect restraint on religion. In Employment Division, Department of Human Resources v. Smith the Court allowed the states more discretion when balancing claims of religious freedom against the states’ interests in enacting and enforcing reasonable laws of general application. Congress responded to the controversial Smith decision with the Religious Freedom Restoration Act of 1993, which required states to apply the more demanding Sherbert standards. A Roman Catholic Church in Boerne, Texas, desired to replace its old and small church building, but the city had classified the structure as an historic landmark that must be preserved. The bishop sued in federal court, asserting that the 1993 act prevented the city from interfering with the church’s decision to construct a new building. By a 6-3 vote, the Court ruled that the 1993 act was unconstitutional. Justice Anthony M. Kennedy’s opinion argued that section 5 of the Fourteenth Amendment gave Congress the power only to enforce the rights protected by the amendment, not to decree the substantive meaning of the amendment. The clear intent of the 1993 act was to veto a constitutional interpretation made by the Court. Kennedy insisted that such a challenge to the Court’s proper authority is contrary to the U.S. tradition of separation of powers. Three justices dissented from the majority’s continued support for the Smith decision. Thomas T. Lewis

Bolling v. Sharpe Citation: 347 U.S. 479 Date: May 17, 1954 Issues: Segregation; substantive due process Relevant amendment: Fifth Significance: The Supreme Court unanimously held that de jure segregation by the federal government violated the due process clause of the Fifth Amendment.

The Cases

Bolling v. Sharpe / 425 In his Bolling opinion, Chief Justice Earl Warren used an implicit substantive due process interpretation of the Fifth Amendment. (Supreme Court Historical Society)

The Bolling v. Sharpe decision dealt with school segregation in Washington, D.C., and was announced the same day as Brown v. Board of Education (1954). The equal protection clause of the Fourteenth Amendment did not apply to acts of Congress, so the two cases had to be considered separately. Speaking for the Supreme Court, Chief Justice Earl Warren implicitly used a substantive due process interpretation of the Fifth Amendment. He stated that because segregation in education was not reasonably related to a proper governmental function, it imposed a burden on African American children that constituted “an arbitrary deprivation of their liberty.” Ironically, Warren referred to the Japanese American relocation cases, in which the Court’s opinions had recognized an “equal protection component” in the concept of due process. Bolling established that the federal government and the states are usually accountable to the same standards in equal protection cases. Thomas T. Lewis

426 / Bowers v. Hardwick

The Cases

Bowers v. Hardwick Citation: 478 U.S. 186 Date: June 30, 1986 Issues: Gay and lesbian rights; right of privacy Relevant amendments: Fifth, Fourteenth Significance: The Supreme Court held that the U.S. Constitution does not protect a right to engage in consensual homosexual conduct. By 1986 the Supreme Court had established that the due process clauses of the Fifth and Fourteenth Amendments protect a fundamental right to generic privacy, especially in personal choices relating to marriage, procreation, and child rearing. Proponents of gay rights argued that the right of privacy should be extended to provide protection for homosexual practices, which would invalidate all legislation proscribing such practices. Michael Hardwick, in the privacy of his own bedroom, was arrested for violating Georgia’s antisodomy law. Hardwick, with the assistance of the American Civil Liberties Union, used the arrest to challenge the constitutionality of the Georgia statute. By a 5-4 vote, the Court upheld the statute. Speaking for the majority, Justice Byron R. White argued that the Court should be cautious about expanding the number of liberties based on the doctrine of substantive due process, and that the liberties protected under the doctrine should be limited to those that are “implicit in the concept of ordered liberty” and those that are “deeply rooted in this Nation’s history and tradition.” White noted that as late as 1961, all fifty states had criminalized homosexual conduct and that half of the states continued to do so. He warned against “judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution.” In a concurring opinion, Justice Lewis F. Powell, Jr., wrote that the actual imposition of a criminal penalty for homosexual conduct would be contrary to the principles of the Eighth Amendment. After retiring, Powell told law students that he had “probably made a mistake” in voting with the majority. Thomas T. Lewis

The Cases

Boy Scouts of America v. Dale / 427

Boy Scouts of America v. Dale Citation: 99-699 Date: June 28, 2000 Issues: Freedom of association; enforcement of state antidiscrimination laws Relevant amendment: First Significance: The U.S. Supreme Court ruled that the state of New Jersey had unconstitutionally violated the free-association rights of the Boy Scouts when it applied a public accommodation law to force that organization to accept gay men in leadership positions. James Dale, a college student who was an Eagle scout, became an assistant scoutmaster in 1989. When he revealed his sexual orientation in a speech at the Gay/Lesbian Alliance of Rutgers University, officials of the Boy Scout organization notified him that they were severing all ties with him because the organization’s standards of leadership explicitly forbade membership to homosexuals. Dale sued in state court under a public accommodation statute which prohibited discrimination on the basis of sexual orientation. After the highest court of New Jersey ruled in Dale’s favor, the Boy Scouts appealed the decision to the U.S. Supreme Court. A 5-4 majority of the justices held that the Boy Scouts had a First Amendment right to exclude gays from leadership positions. Writing the majority opinion, Chief Justice William Rehnquist argued that any private organizations engaged in “expressive association” had the right to establish its own views on morality without the interference of the state. The government possessed no authority to reject a group’s expressed values because those values were believed to be inconsistent, unwise, or irrational. Rehnquist emphasized that constitutional protection of expressive association was not reserved for groups organized for the primary purpose of advocacy, and that it was also irrelevant whether opposition to homosexuality was a major tenant of the organization. Speaking for the four liberal dissenters, Justice John Paul Stevens emphasized the state’s legitimate interest in eradicating invidious discrimination, and he asserted that application of the law would not have any significant impact on the ability of the organization to disseminate its message. Thomas T. Lewis

428 / Boyd v. United States

The Cases

Boyd v. United States Citation: 116 U.S. 616 Date: February 1, 1886 Issues: Fourth and Fifth Amendments; exclusionary rule; privacy Relevant amendments: Fourth, Fifth Significance: The Supreme Court made expansive interpretations of the constitutional guarantees against compulsory self-incrimination and unreasonable searches and seizures. The federal government charged New York merchants George Boyd and Edward Boyd with a civil offense for importing plate glass without paying the required duty. Using a federal statute, officials obtained a court order instructing the Boyds to produce the invoices for the goods. When the invoices were used as evidence, the Boyds claimed that the government had violated their rights under the Fourth and Fifth Amendments. The government argued that there had been no physical invasion of property and that the amendments applied only to criminal trials. A unanimous Supreme Court ruled in favor of the Boyds and found part of the customs statute unconstitutional. Justice Joseph P. Bradley reasoned that the Fourth and Fifth Amendments combined with the common law to protect “the sanctity of a man’s house and the privaIn Boyd, Justice Joseph Bradley insisted that cies of life.” The Fourth Amendcourts should uphold the spirit of the Fourth ment protected individuals from Amendment because it applied “to all any procedures that had the invasions on the part of the government and its employees of the sanctity of a man’s home same effect as a physical search. and the privacies of life.” (Library of It applied to all proceedings with Congress) government penalties and per-

The Cases

Brandenburg v. Ohio / 429

mitted searches only for contraband articles not for mere evidence of an illegal action. A warrantless seizure, moreover, violated the Fifth Amendment prohibition against compulsory self-incrimination. Bradley declared that the courts should guard against any “stealthy encroachments” of constitutional rights. The Boyd decision was a watershed in providing a liberal interpretation of privacy rights by joining the Fourth and Fifth Amendments to common law principles. Also, the decision initiated the development of the exclusionary rule. Boyd’s mere evidence rule, however, was eventually abandoned in Warden v. Hayden (1967). Thomas T. Lewis

Brandenburg v. Ohio Citation: 395 U.S. 444 Date: February 27, 1969 Issues: Freedoms of speech and assembly Relevant amendment: First Significance: The Supreme Court overturned the conviction of a man under a criminal syndicalism statute, ruling that the advocacy of illegal action could be punished only if it was likely to produce imminent lawless action. Clarence Brandenburg, a Ku Klux Klan member, was convicted of violating a criminal syndicalism statute for appearing in a television report brandishing a shotgun and advocating racial strife. The Supreme Court, in a unanimous unsigned per curiam decision, found it unconstitutional for a state to impose a criminal syndicalist statute punishing the mere advocacy of the overthrow of the U.S. government. This ruling overturned Whitney v. California (1927), in which the Court had upheld a similar statute, and brought an end to fifty years of largely futile efforts to make the vague clear and present danger test of Schenck v. United States (1919) work in varying circumstances. At times, this test allowed the government to prosecute for speech that demonstrated a bad tendency or, as in Dennis v. United States (1951), for plans to publish unpopular views. By insisting that the government must demonstrate that the action was likely to incite imminent lawless action before prosecuting, the Court provided a much more concrete test that substantially strength-

430 / Branzburg v. Hayes

The Cases

ened free speech and validated the imminence test suggested in Justice Oliver Wendell Holmes’s dissent in Abrams v. United States (1919). Richard L. Wilson

Branzburg v. Hayes Citation: 408 U.S. 665 Date: June 29, 1972 Issue: Freedom of speech Relevant amendment: First Significance: The Supreme Court ruled that the First Amendment did not provide journalists with a special testimonial privilege not enjoyed by other citizens. Paul Branzburg, a reporter of a Louisville newspaper, wrote a series of articles about traffic in illegal drugs, using information from drug users who insisted on their anonymity. Subpoenaed by a grand jury, he refused to answer questions about his confidential sources. The Supreme Court consolidated the case with those of two other journalists who had refused to provide information to grand juries. By a 5-4 vote, the Court found that requiring their testimony was not an unconstitutional infringement on the freedom of the press. Justice Byron R. White’s plurality opinion concluded that the public interest in law enforcement outweighed any incidental burden that journalists might have in obtaining confidential information. Throughout U.S. history, White wrote, the press had “operated without protection for press informants.” In response to the media’s vehement opposition to the Branzburg decision, some twenty-six states enacted shield laws allowing reporters to refuse to divulge their sources in limited circumstances. Thomas T. Lewis

Brecht v. Abrahamson Citation: 507 U.S. 619 Date: April 21, 1993 Issues: Habeas corpus; Miranda rights Relevant amendments: Fifth, Sixth

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Brown v. Board of Education / 431

Significance: When federal courts review challenges to trial errors involving Miranda violations, the Supreme Court held that the courts may overturn convictions only when the errors result in “a substantial and injurious effect or influence” on the outcome of the trial. In a trial that resulted in Todd Brecht’s conviction on charges of firstdegree murder, the prosecutor made statements that were contrary to the Supreme Court’s binding interpretations of Miranda v. Arizona (1966). The Court had previously held that the state had the burden of proving beyond a reasonable doubt that any constitutional error was harmless. In Brecht, a 5-4 majority of the Court voted to expand the “harmless error” standard in cases involving Miranda rights. Chief Justice William H. Rehnquist’s opinion for the majority had the result of shifting the burden of proof from the state to the defendant filing a petition for a habeas corpus hearing in federal court. Thomas T. Lewis

Brown v. Board of Education Citation: 347 U.S. 483 Date: May 17, 1954 Issues: Due process; equal protection clause; inverse incorporation Relevant amendments: Fifth, Tenth, Fourteenth Significance: The Supreme Court unanimously held that de jure (legally instituted) segregation of the public schools violated the Constitution’s mandate for the equal protection of the laws. Following the reconstruction era, which ended in 1877, southern states enacted laws requiring racial segregation in almost all aspects of life. This legal system, often called “Jim Crow,” was considered necessary to the preservation of white supremacy. In Plessy v. Ferguson (1896), the Supreme Court allowed state-mandated segregation based on the separate but equal doctrine. Although the Court reaffirmed the doctrine on numerous occasions, it did not require the states to provide equality of facilities, funding, or standards. The consequences of the Jim Crow system were especially important in the field of publicly financed education. Beginning in the 1930’s, the Legal Defense Fund (LDF) of the National Association for the Advancement of Colored People (NAACP) be-

432 / Brown v. Board of Education

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gan to mount a serious challenge to the constitutionality of segregated schools. Rather than beginning with a direct attack on Plessy, the LDF lawyers, led by Thurgood Marshall, first concentrated on equality of opportunity at publicly funded law schools. In 1938, the Court held that black students must be provided the same right as white students to attend law schools within their states of residency. In Sweatt v. Painter (1950), the Court ruled that all-black law schools, in order to be constitutional, must be qualitatively equal to those for white students. Marshall decided that the time was ripe to challenge the constitutionality of segregation in elementary and secondary education. Linda Carol Brown, an eight-year-old black girl, was not allowed to attend the all-white school in her neighborhood of Topeka, Kansas. Her parents, not wanting her to be bused to an all-black school far from her home, filed a suit charging the school board with a violation of the equal protection clause of the Fourteenth Amendment. When the case arrived at the Supreme Court, it was consolidated with similar cases from South Carolina, Virginia, Delaware, and Washington, D.C. The cases were listed in alphabetical order, with Brown v. Board of Education the first on the list. The cases were initially argued before the Court in December, 1952. Marshall and the LDF lawyers emphasized studies indicating that black children suffered psychological and sociological damage as a result of segregation. In defense of segregation, lawyers for the school districts invoked Plessy and claimed that all-black schools either had or would soon have equal funding for facilities and teachers’ salaries. Because of the great opposition to racial integration in the South, the Supreme Court’s justices recognized the desirability of presenting a united front in both their decision and their opinion. While the Court’s majority favored a reversal of the Plessy doctrine, one justice defended Plessy, and two others were hesitant to order desegregation of all schools. Deciding it needed more information about the original meaning of the Fourteenth Amendment, the Court rescheduled arguments for December, 1953. That summer, Chief Justice Fred Vinson, a moderate conservative on race relations, unexpectedly died, and he was quickly replaced by Earl Warren, who strongly supported a reversal of Plessy. After the case was reargued, Warren skillfully worked with the justices to get a consensus. About a week before the landmark ruling was announced, the two justices with conservative views on race relations agreed to support the opinion of the majority. Warren’s opinion for the Court, written in thirteen paragraphs of nontechnical language, declared that segregated public schools were “inher-

The Cases

Brown v. Mississippi / 433

ently unequal,” and therefore they violated the equal protection clause. Racial segregation, he argued, conveyed the message that African American students were inferior and generated “a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.” Even if the framers of the Fourteenth Amendment had perhaps not intended to forbid segregation in education, they had clearly supported the principle of equal rights to public services, and the experience of the twentieth century demonstrated that segregated schools were incompatible with the goal of equality. In addition, Warren emphasized that formal education had become more common and more important for a person’s life chances than it had been when the Fourteenth Amendment was ratified. Although the Brown decision did not directly refer to any of the provisions in the Bill of Rights, it had major impacts on the applications of two provisions. First, to the dismay of conservative white southerners, the logic of Warren’s opinion implied a narrow view of states’ rights under the Tenth Amendment. Second, the ruling necessitated a change in how the Court interpreted the due process clause of the Fifth Amendment. In Brown’s companion case, Bolling v. Sharpe (1954), which struck down a congressional statute mandating segregated schools in the nation’s capital, the Court could not base its ruling directly on the Fourteenth Amendment. Rather, it concluded that the concept of due process required that all persons enjoy the equal protection of the laws. The Court also declared that the due process clause protected a substantive liberty which was incompatible with arbitrary restraints on the availability of taxsupported services. Drawing on those two premises after 1954, the Court consistently held that its interpretations of the equal protection clause of the Fourteenth Amendment were binding on the federal government by way of the Fifth Amendment. Thomas T. Lewis

Brown v. Mississippi Citation: 297 U.S. 278 Date: February 17, 1936 Issues: Coerced confessions; defendants’ rights Relevant amendment: Fifth

434 / Buchanan v. Warley

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Significance: The Supreme Court held that the due process clause of the Fourteenth Amendment prohibited states from using criminal confessions obtained by means “revolting to the sense of justice.” In the early 1930’s, three African American tenant farmers in Mississippi were convicted of murdering a white planter. The main evidence was their confessions. At trial, police officers admitted that they had employed brutal whippings and threats of death to obtain the confessions. The defendants, nevertheless, were convicted and sentenced to be hanged. The Mississippi supreme court upheld the constitutionality of their trials and convictions. By a 9-0 vote, the Supreme Court reversed the state court’s ruling. Chief Justice Charles Evans Hughes’s opinion held that coerced confessions violated a principle “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” At the same time, however, the Court reaffirmed that the self-incrimination clause of the Fifth Amendment was not binding on the states. Despite its modest requirements, Brown was the first in a line of cases requiring fundamental fairness for the use of confessions in state trials. Thomas T. Lewis

Buchanan v. Warley Citation: 245 U.S. 60 Date: November 5, 1917 Issues: Housing discrimination; substantive due process Relevant amendments: Fifth, Fourteenth Significance: Emphasizing property rights, the Supreme Court struck down state laws that mandated racial segregation in housing. Early in the twentieth century, many southern cities enacted ordinances that mandated residential segregation. Louisville, Kentucky, prohibited both African Americans and European Americans from living on blocks where the majority of residents were persons of the other race. The National Association for the Advancement of Colored People arranged a sale of property to test the law. Although the Supreme Court had consistently sanctioned segregation, it ruled unanimously that the Louisville ordinance was unconstitutional. In his opinion for the Court, Justice Wil-

The Cases

Burstyn v. Wilson / 435 Justice William R. Day argued that a residential segregation ordinance violated the Fourteenth Amendment’s due process clause because it was an unreasonable restriction on the liberty of all people to buy and sell property. (Library of Congress)

liam R. Day stated that the ordinance was an unreasonable restriction on the liberty of all people to buy and sell property, as protected by the due process clause of the Fourteenth Amendment. The decision showed that the protection of property rights and economic liberty could sometimes have the effect of promoting civil equality. The Buchanan decision, however, was of limited impact for two reasons. First, it did not question the constitutionality of de jure racial segregation in areas such as education and transportation. Second, many private citizens began to enter into racially restrictive contracts, which were not rendered unenforceable until Shelley v. Kraemer (1948). Thomas T. Lewis

Burstyn v. Wilson Citation: 343 U.S. 495 Date: May 26, 1952 Issue: Freedom of speech Relevant amendment: First Significance: The Supreme Court held, for the first time, that films were a medium for expressing ideas and therefore deserved a degree of protection under the First and Fourteenth Amendments.

436 / Butler, United States v.

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The film in question, The Miracle, was an Italian import that told the story of a peasant girl who, after being seduced by a stranger, gave birth to a son she believed to be Jesus Christ. The New York censors ruled that the film was “sacrilegious,” and it was banned from the state. The practice of film censorship had been approved by the Supreme Court in its first ruling on films, Mutual Film Corp. v. Industrial Commission of Ohio (1915), which held that films were not covered by any constitutional guarantee of free expression because they were “business pure and simple.” The Court unanimously reversed the 1915 ruling and ruled that the vague concept “sacrilegious” was unacceptable as a standard for prior restraint. Justice Tom C. Clark’s opinion for the majority argued that preexhibition censorship was justified only in exceptional cases, and that standards must not permit unfettered discretion by censors. Clark acknowledged that films, because of their special potential for harm, might enjoy less First Amendment protection than printed materials, but he refused to discuss whether states had a legitimate interest in censoring pornographic films. The prerogative of states to engage in film censorship was further restricted in Roth v. United States (1957), when the Court narrowly defined obscenity and ruled that any nonobscene expression of ideas was protected by the First and Fourteenth Amendments. In Freedman v. Maryland (1965), the Court continued to allow censorship of films but only under stringent procedures that include prompt judicial review. Thomas T. Lewis

Butler, United States v. Citation: 297 U.S. 1 Date: January 6, 1936 Issue: Taxing and spending clause Relevant amendment: Tenth Significance: The Supreme Court struck down the regulatory features of the Agricultural Adjustment Act (AAA) of 1933 as inconsistent with the Tenth Amendment, while at the same time interpreting the general welfare clause as providing an independent source of congressional power to spend public money for public purposes.

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California v. Acevedo / 437

The first Agricultural Adjustment Act, in order to counter the devastating effects of the Great Depression on agricultural prices, authorized the payment of subsidies to farmers in exchange for a reduction in the production of agricultural commodities. The funding for the payments came from a processing tax levied on the processors of the commodities. William Butler and other receivers of a cotton processing company refused to pay the tax. By a 6-3 vote, the Supreme Court ruled that the tax was unconstitutional. Speaking for the majority, Justice Owen J. Roberts argued that the processing tax was not a true tax for raising revenue but part of a system for regulating agricultural production, which was a power reserved to the states under the Tenth Amendment. In this part of his opinion, Roberts simply reaffirmed Bailey v. Drexel Furniture Co. (1922). Roberts then considered whether the subsidies could be justified by the general welfare clause. Although he found that Congress had broad authority to appropriate funds for the general welfare, he denied that Congress could impose regulations as a condition for receiving the funds. In a famous dissent, Justice Harlan Fiske Stone argued that the act was a valid application of the taxing and spending power of Congress and referred to Roberts’s opinion as “a tortured construction of the Constitution.” Declaring that the Court should exercise self-restraint, Stone wrote: “Courts are not the only agencies of government that must be assumed to have the power to govern.” Although Butler expressed a preference for limited government, its interpretation of the general welfare clause provided later justification for the Social Security Act and other federal programs. In Mulford v. Smith (1939), Justice Roberts wrote the majority opinion that upheld the Agricultural Adjustment Act of 1938, despite its great similarity to the act of 1933. Thomas T. Lewis

California v. Acevedo Citation: 500 U.S. 565 Date: May 30, 1991 Issue: Automobile searches Relevant amendment: Fourth

438 / Cantwell v. Connecticut

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Significance: The Supreme Court held that the police may search either an automobile or a closed container in an automobile without a search warrant provided that the search is supported by probable cause. The Acevedo decision established “one clear-cut rule” for searches of both automobiles and containers within automobiles. After 1925 the Supreme Court had allowed the police to stop and search moving vehicles on probable cause without a search warrant. In United States v. Chadwick (1977), however, the Court held that the police needed a warrant to search a sealed container, even when the container was located in an automobile. Then in United States v. Ross (1982), the Court allowed the police to search any containers that happened to be located in an automobile that was being searched on the basis of probable cause. The combination of Chadwick and Ross often confused judges and the police. When the police observed Charles Acevedo put a brown bag into the trunk of his car, they had probable cause to think that the bag contained marijuana. Although the police had no other justification to search the car, they nevertheless took the bag from the trunk and opened the bag without getting a warrant. California courts, in conformity with Chadwick, ruled that the marijuana in the bag could not be used as evidence in a criminal trial. By a 6-3 vote, however, the Supreme Court reversed the Chadwick ruling. Justice Harry A. Blackmun’s majority opinion argued that the Fourth Amendment’s protection of privacy should not depend on “coincidences” such as whether the probable cause referred to the automobile or to the container. Thomas T. Lewis

Cantwell v. Connecticut Citation: 310 U.S. 296 Date: May 30, 1940 Issue: Freedom of religion Relevant amendment: First Significance: The Supreme Court broadly interpreted the religious exercise clause of the First Amendment and held that the clause was applicable to the states through the Fourteenth Amendment.

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Carolene Products Co., United States v. / 439

Newton Cantwell, an active member of the Jehovah’s Witnesses, went door to door trying to make converts. A few people complained about his diatribes against the Roman Catholic Church. Cantwell was arrested and convicted for violating a state law that required a license for soliciting funds. By a 9-0 vote, the Supreme Court reversed the conviction and invalidated the law. Justice Owen J. Roberts’s opinion for the Court emphasized that the Constitution protected religious conduct such as proselytizing. He wrote that a state may reasonably regulate the time, place, and manner of activities to prevent fraud or disorder, but it cannot entirely forbid unpopular conduct. The Connecticut law constituted a form of religious censorship because it gave public officials excessive discretion for approving or rejecting applications for licenses. Thomas T. Lewis

Carolene Products Co., United States v. Citation: 304 U.S. 144 Date: April 25, 1938 Issues: Judicial scrutiny; discrimination; constitutional prohibitions Relevant amendments: First, Fifth, Fourteenth Significance: In advocating special judicial scrutiny when considering explicit constitutional prohibitions or discrimination against minorities, the fourth footnote in this case’s decision—the most famous footnote in American constitutional history—helped to promote the later judicial activism in defense of minorities and fundamental rights. The justices in this case, upholding a relatively minor congressional regulation of commerce, employed a presumption of legislative constitutionality, just as they had done in earlier cases dealing with economic regulations of business. Because the Court had not utilized this presumption of constitutionality when examining a restriction on the freedom of the press in Near v. Minnesota (1931), Justice Harlan Fiske Stone, encouraged by Chief Justice Charles Evans Hughes, included a three-paragraph footnote in order to justify the use of different presumptions for different legal issues. Although Stone spoke for a 5-2 majority in the ruling, he actually only spoke for himself and two other justices in the crucial part of the opinion containing the footnote.

440 / Carroll v. United States

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In essence, the footnote explained why it was appropriate for the Court to apply different standards of judicial scrutiny for different kinds of legislation. The note’s first paragraph asserts that the presumption of constitutionality might be of “narrower scope” when the challenged legislation appeared to contradict a specific prohibition explicitly written in the Constitution, as in the Bill of Rights. The second paragraph suggests that courts might need to use heightened Chief Harlan Fiske Stone, author of the historic “footnote four” in the Carolene scrutiny when reviewing legisladecision. (Collection of the Supreme tion restricting those political Court of the United States) processes that usually make it possible to bring about the repeal of undesirable legislation. The third paragraph suggests that a “more searching judicial inquiry” might be necessary in order to preserve the constitutional rights of racial or religious minorities, because such minorities commonly possess limited political influence. The majority of the Supreme Court would later endorse a modified version of the Caroline Products footnote, requiring application of strict judicial scrutiny when dealing with two issues: racial classifications and restrictions on fundamental rights. Thomas T. Lewis

Carroll v. United States Citation: 267 U.S. 132 Date: March 2, 1925 Issue: Automobile searches Relevant amendment: Fourth Significance: The Supreme Court held that the Fourth Amendment permits the police to stop and search a vehicle without a warrant when there is probable cause that it contains contraband.

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Carter v. Carter Coal Co. / 441

Based on a combination of circumstances, federal agents had reason to think that George Carroll was illegally transporting liquor in his automobile. Following a chase, the agents searched his automobile without a warrant and found bottles of liquor concealed in the back seat. After Carroll’s conviction, his lawyers argued that the evidence should have been excluded from his trial because it violated the requirements of the Fourth Amendment. By a 6-2 margin, the Supreme Court rejected the claim. Speaking for the majority, Chief Justice William H. Taft wrote that the U.S. legal tradition had long accepted a distinction between stationary buildings and means of transportation such as boats or automobiles, in which mobility often made it impractical for the police to secure a warrant. At the same time, Taft insisted that the Fourth Amendment prohibited all “unreasonable searches and seizures.” Trying to reconcile these two considerations, he wrote that the police must not stop and search highway travelers unless there is probable cause that the vehicles are carrying contraband. Carrol’s so-called “automobile exception” is well established. Since the 1970’s, however, the Court had to decide many difficult questions about the implications and limits of the decision. In California v. Carney (1985), for example, the Court held that a motor home, unless situated in a residential location, falls under the Carroll ruling. Thomas T. Lewis

Carter v. Carter Coal Co. Citation: 298 U.S. 238 Date: March 18, 1936 Issue: Regulation of commerce Relevant amendment: Tenth Significance: The Supreme Court overturned a 1935 coal act that set up local boards to regulate coal prices and help workers negotiate wages and hours, holding that only the states had the right to regulate coal mining. Although widely ignored, the ruling was never overturned. With a 5-4 vote, the Supreme Court overturned the Bituminous Coal Conservation Act of 1935, which attempted to stop strikes and dislocation in the coal industry by creating local boards that set the minimum price for local coal and also provided wage and hour agreements through col-

442 / Champion v. Ames

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lective bargaining. In the opinion for the Court, Justice George Sutherland reiterated his view that the Tenth Amendment and the commerce clause placed restrictions on how Congress dealt with economic matters, in particular, limiting its ability to delegate its lawmaking power, whether to executive branch bureaucrats or to private groups such as the coal boards. In setting up local coal boards, Congress relied on its power to regulate interstate commerce, but Sutherland used the prevailing distinction that Congress could regulate only direct interstate commerce. Indirect intrastate commerce was for states, not the federal government, to control. Justices Benjamin N. Cardozo, Louis D. Brandeis, and Harlan Fiske Stone dissented, objecting to the weakness of the direct-indirect distinction. Only a year later, the dissenters prevailed in National Labor Relations Board v. Jones and Laughlin Steel Corp. (1937). Richard L. Wilson

Champion v. Ames Citation: 188 U.S. 321 Date: February 23, 1903 Issues: Definition of interstate commerce; federal police powers Relevant amendment: Tenth Significance: In upholding a federal statute that prohibited the transportation of lottery tickets in interstate commerce, the Supreme Court defined commerce broadly and authorized the development of a federal police power. Although the U.S. Constitution contains no federal police power, a broad interpretation of the commerce clause allowed the federal government to become involved with the public’s safety, health, morality, and welfare. In the late nineteenth century, Congress began to enact commerce-based police power legislation. For example, the Federal Lottery Act of 1895 had the goal of attacking gambling activities rather than regulating an object of commerce. When C. F. Champion was convicted of disobeying the statute, he asserted that the act was unconstitutional for three reasons: First, lottery tickets, as such, were not objects of commerce; second, even if they were objects of commerce, the word “regulate” in the commerce clause did not include the power to prohibit; and third, only the

The Cases

Chaplinsky v. New Hampshire / 443

states, according to the Tenth Amendment, could exercise the police power. Speaking for a 5-4 majority, Justice John Marshall Harlan emphasized the plenary nature of congressional power over interstate commerce. Lottery tickets were objects of real value and therefore items of commerce. The power to regulate commerce, moreover, encompassed the power to prohibit any products considered intrinsically harmful to the public. The effect of the so-called Lottery Case was to recognize that Congress might exercise a de facto police power, as desired by Progressives of the era. Based on the precedent, the Court upheld the Pure Food and Drug Act of 1906 in Hipolite Egg Co. v. United States (1911), and it upheld the Mann Act of 1910 (involving white slavery) in Hoke v. United States (1913). During this era, the Court’s acceptance of a federal police power was limited to regulation of criminal or “sinful” activities and did not extend to most economic regulations. Thomas T. Lewis

Chaplinsky v. New Hampshire Citation: 315 U.S. 568 Date: March 9, 1942 Issue: Freedom of speech Relevant amendment: First Significance: The Supreme Court upheld a man’s conviction for derisive speech or name calling in public, reasoning that “fighting words” were not subject to First Amendment protection. Writing for a unanimous Supreme Court, Justice Frank Murphy upheld a state statute under which the defendant was convicted for calling a city marshal a “racketeer” and “fascist” and referring to other officials as “agents of fascists.” The relevant state law prohibited derisive speech or name calling in public. Murphy created a two-tier theory of free speech protection in which certain “well-defined and narrowly limited” types of speech do not have First Amendment protection. “Fighting words” as well as lewd, profane, obscene, and libelous words fell outside the boundaries of constitutional protection because they did not represent a free speech value such as the search for truth.

444 / Chicago, Burlington, and Quincy Railroad Co. v. Chicago

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Although Chaplinsky was never overturned and the two-tier theory remains valid regarding business advertising, public swearing, and pornography, the thrust of this decision was considerably narrowed. Libelous publications are judged by the standards set in New York Times Co. v. Sullivan (1964), and verbal challenges to police officers enjoy constitutional protection, so Chaplinsky is only a shell of its former self. Richard L. Wilson

Chicago, Burlington, and Quincy Railroad Co. v. Chicago Citation: 166 U.S. 226 Date: March 1, 1897 Issues: Incorporation doctrine; substantive due process; takings clause Relevant amendments: Fifth, Fourteenth Significance: For the first time in history, the Supreme Court, using the doctrine of substantive due process, held that one of the provisions in the Bill of Rights was binding on the states as a part of the due process requirements of the Fourteenth Amendment.

The Fuller court at the time of its Chicago ruling. (Collection of the Supreme Court of the United States)

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Chicago v. Morales / 445

Justice John Marshall Harlan wrote the 7-1 majority opinion with Justice David J. Brewer dissenting in part and Justice Melville W. Fuller not participating. The Supreme Court unanimously held that the Fourteenth Amendment’s due process clause required the states to grant just compensation when it took private property for a public purpose. The ruling was unanimous because Justice Brewer concurred on this point even though he dissented on other issues. The Illinois supreme court had upheld a jury verdict of one dollar awarded to the Chicago, Burlington, and Quincy Railroad for loss of its money-making ability when the city of Chicago created a street across its railroad track. Chicago, Burlington, and Quincy Railroad Co. was one of the earliest attempts to use the right of substantive due process to control a state’s attempt to regulate economic behavior. Although this latter purpose has been set aside by other decisions, this case remains valid law for the proposition that the Fourteenth Amendment due process clause incorporates specific guarantees for the Bill of Rights. In this case, the Fifth Amendment’s guarantee of just compensation when private property is taken for public purpose was incorporated and applied to the states. Richard L. Wilson

Chicago v. Morales Citation: No. 97-1121 Date: June 10, 1999 Issue: Procedural due process Relevant amendments: Fifth, Fourteenth Significance: The Supreme Court held that an antiloitering ordinance was unconstitutionally vague, failing to give ordinary citizens fair notice about the kinds of conduct that are prohibited and allowing the police too much unguided discretion. In 1992 the Chicago city council enacted a law making it a misdemeanor to remain in one place with “no apparent purpose” in the presence of a suspected gang member when ordered to move by a police officer. During its three years of application, forty-two thousand people were arrested under the law. Many cities looked to the law as a model for reclaiming streets from gangs that used loitering as a strategy to control territory. A 6-3 majority of the justices found that the law violated due process stan-

446 / Chimel v. California

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dards because of the vagueness issue. Three members of the majority wanted to rule that the freedom to loiter for innocent purposes was part of the “liberty” protected by the Fourteenth Amendment. In a strong dissent, Justice Clarence Thomas accused the majority of sentencing “lawabiding citizens to lives of terror and misery.” The justices appeared to agree that a law narrowly worded to prohibit intimidating conduct on the streets would be constitutional. Because the Supreme Court recognized the problems associated with city gangs, the tone of the Chicago decision was quite different from Papachristou v. City of Jacksonville (1972), in which the Court, in an opinion written by Justice William O. Douglas, struck down a vagrancy law by referring to the values of nonconformity and the open road as extolled by poets Walt Whitman and Vachel Lindsay. Thomas T. Lewis

Chimel v. California Citation: 395 U.S. 752 Date: June 23, 1969 Issue: Search and seizure Relevant amendment: Fourth Significance: The Supreme Court held that when a valid arrest is made, the Fourth Amendment permits the police to search the arrested person and the area “within his immediate control,” but not any additional area. Using an arrest warrant, the police arrested Ted Chimel at his home on burglary charges. Ignoring Chimel’s objections, the police then conducted a search of the entire house and discovered stolen property that provided the basis for Chimel’s conviction. Rejecting Chimel’s appeal, the California courts noted that the Supreme Court had upheld a similar warrantless search incident to an arrest in United States v. Rabinowitz (1950). By a 6-2 vote, the Court ruled Chimel’s trial unconstitutional and overruled Rabinowitz. Speaking for the majority, Justice Potter Stewart recognized that it was reasonable for the police to search the person arrested in order to remove any concealed weapons and to prevent the concealment

The Cases

Church of Lukumi Babalu Aye v. Hialeah / 447

or destruction of evidence. Likewise, the police had a legitimate reason to search the area into which an arrestee might reach for a weapon. The Court applied the Chimel rationale to allow more extensive searches during arrests when justified by exigent circumstances. In Maryland v. Buie (1990), for instance, the Court approved of a protective sweep of a home believed to harbor an individual posing a danger to the arrest scene. Thomas T. Lewis

Church of Lukumi Babalu Aye v. Hialeah Citation: 508 U.S. 520 Date: June 11, 1993 Issue: Freedom of religion Relevant amendment: First Significance: Overturning a local ban on animal sacrifices, the Supreme Court announced that it would use the strict scrutiny test in examining any law targeting religious conduct for special restrictions. Believers in the Santería religion, which combines African and Roman Catholic traditions, practice animal sacrifices in order to appeal to benevolent spirits to heal the sick and promote good fortune. Many other people in the United States, however, find such ceremonies to be highly offensive. In 1987 a Santería congregation announced plans to establish a house of worship in the city of Hialeah, Florida. Responding to a public outcry, the Hialeah city council passed several ordinances that made it illegal to kill animals in religious ceremonies, while still allowing the killing of animals for human consumption. After federal district and appellate courts upheld the ordinances, the justices of the Supreme Court ruled they were unconstitutional. Speaking for a unanimous Court, Justice Anthony M. Kennedy explained that when a law is plainly directed at restricting a religious practice, it must satisfy two tests: The restriction must be justified by a compelling state interest, and the restriction must be narrowly tailored to advance that interest. General and neutral laws may proscribe cruelty to animals or require the safe disposal of animal wastes; however, a community may not place a direct burden on an unpopular religious practice without a strong secular justification.

448 / Cohen v. California

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Justice Kennedy’s opinion did not entirely please libertarians because it did not overturn Employment Division, Department of Human Resources v. Smith (1990), which allowed for the more lenient test of rationality in examining laws putting an incidental burden on a religious practice. Three justices—David H. Souter, Harry A. Blackmun, and Sandra Day O’Connor—concurred with the ruling but expressed disagreement with the Smith precedent. Thomas T. Lewis

Cohen v. California Citation: 403 U.S. 15 Date: June 7, 1971 Issue: Symbolic speech Relevant amendment: First Significance: The Supreme Court overturned the conviction of a man for wearing a jacket emblazoned with a profanity in a courthouse, thereby expanding constitutional protection for vulgar and offensive speech and limiting the concept of righting words. By a 5-4 vote, the Court overturned the conviction of a defendant who wore a jacket with the words “Fuck the draft” emblazoned across its front into a Los Angeles courthouse, where profanity was prohibited. Justice John Marshall Harlan II, a generally conservative justice, wrote the opinion for the 5-4 majority, which held that symbolic speech, even if provocative in nature, was protected by the First Amendment. Although the Court substantially broadened the range of provocative speech under First Amendment protection, it left limits. For example, when young men protested the Vietnam War by burning their draft cards, the Court upheld their conviction in United States v. O’Brien (1968). In that case, the protection extended to symbolic speech was judged not to extend to violations of otherwise valid laws. In Tinker v. Des Moines Independent Community School District (1969), the Court ruled that schools cannot stop students from protesting by wearing black arm bands. In Texas v. Johnson (1989), the Court voided a Texas law that banned the burning of the U.S. flag, finding the act to be protected symbolic speech because it was a form of political protest. Richard L. Wilson

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Coker v. Georgia / 449

Cohen v. Cowles Media Co. Citation: 501 U.S. 663 Date: June 24, 1991 Issue: Freedom of the press Relevant amendment: First Significance: The Supreme Court held that the First Amendment does not protect newspapers from civil suits for breaking a promise of confidentiality. Dan Cohen, a political consultant, was fired from his job after two newspapers identified him as the source of information about a political candidate. Having been promised confidentiality, he sued for breach of contract. Based on the state’s contract law, the jury awarded him $200,000 in compensatory damages. The Minnesota supreme court, however, overturned the award, concluding that protection for the First Amendment’s freedom of the press outweighed the state’s interest in enforcing contractual obligations. By a 5-4 margin, the Supreme Court directed Minnesota’s high court to reconsider the judgment according to the relevant state laws. Speaking for the majority, Justice Byron R. White reasoned that the First Amendment did not give the publisher of a newspaper any special immunity from the enforcement of general laws and that the application of a general law against the press is not subject to any heightened scrutiny simply because its incidental effect is to make it more difficult for the press to gather and report the news. In contrast, the dissenters argued that an indirect restraint on the truthful reporting of political speech should be judged by the compelling state interest test. Thomas T. Lewis

Coker v. Georgia Citation: 433 U.S. 584 Date: June 29, 1977 Issues: Capital punishment; substantive due process Relevant amendment: Eighth

450 / Collector v. Day

The Cases

Significance: The Supreme Court held that capital punishment for the crime of rape is an excessive and disproportionate penalty, and therefore contrary to the prohibition against cruel and unusual punishments in the Eighth and Fourteenth Amendments. While serving sentences for murder, rape, and other crimes, Ehrlich Anthony Coker escaped from a Georgia prison. That same evening he raped a woman in her home and then forced the woman to leave with him. When apprehended, he was tried on charges of rape, armed robbery, and kidnapping. Using procedures that had been approved by the Supreme Court in Gregg v. Georgia (1976), the jury found Coker guilty of rape with aggravating circumstances and sentenced him to death. By a 7-2 vote, the Court reversed the death sentence and remanded the case to the trial court for new sentencing. Writing for a plurality, Justice Byron R. White argued that the state could not sentence a defendant to a punishment disproportionate to the harm that he had inflicted on the victim. White also noted that Georgia did not apply the death penalty in cases of deliberate murder without aggravating circumstances, and he found that the disproportionality principle meant that a rapist should not be punished more severely than a deliberate murderer. Finally, observing that the Court’s precedents defined the term “cruel and unusual” according to the “evolving standards of decency that mark the progress of a maturing society,” White pointed to the fact that Georgia was the only state to authorize the death penalty for the rape of an adult woman. The Coker decision suggested that the Court would probably not approve of capital punishment for any crime less than intentional murder. The majority of the justices have usually rejected the disproportionality principle in noncapital cases, as in Rummel v. Estelle (1980), but an important exception is Solem v. Helm (1983). Thomas T. Lewis

Collector v. Day Citation: 78 U.S. 113 Date: April 3, 1871 Issue: Federalism Relevant amendment: Tenth

The Cases

Collector v. Day / 451

Significance: In a series of decisions on tax immunities, the Supreme Court held that the federal government could not tax the income of a state judge, based on dual sovereignty of the state and the federal government. Collector is of historical interest for its place in a line of opinions on tax immunities that began with Chief Justice John Marshall’s opinion in McCulloch v. Maryland (1819). Marshall held that the state could not impose a tax on an institution created by the federal government. Following this line, the Court held in Dobbins v. Erie County (1842) that the state could not tax the income of a federal official. In Collector, the opposite situation from Dobbins, the Court held that the federal government could not tax the income of a state judge. Justice Samuel Nelson wrote the 8-1 majority opinion; only Justice Joseph P. Bradley dissented. Nelson relied on the Tenth Amendment and on the theory of dual sovereignty to hold that both the state and federal govern-

Justice Samuel Nelson wrote the majority opinion in Collector, relying on the Tenth Amendment and theory of dual sovereignty to hold that state and federal governments were independent of each other. (Collection of the Supreme Court of the United States)

452 / Communist Party v. Subversive Activities Control Board

The Cases

ments were independent of each other and states retain all aspects of sovereignty not delegated to the national government. This was the strongest view of dual sovereignty presented by the Court, but it could not be sustained over time. Collector was substantially weakened by Helvering v. Gerhardt (1938) and directly overturned in Graves v. New York ex rel. O’Keefe (1939). Richard L. Wilson

Communist Party v. Subversive Activities Control Board Citation: 367 U.S. 1 Date: June 5, 1961 Issue: Freedom of assembly and association Relevant amendment: First Significance: The Supreme Court upheld the registration provisions of the McCarran Act of 1950, although it declined to rule on the constitutionality of sanctions written into the act. A five-member majority of the Supreme Court upheld the McCarran Act of 1950, which required members of the Communist Party to register and file financial statements with the Subversive Activities Control Board, which made them subject to sanctions such as being banned from work in the defense industry. Felix Frankfurter wrote the opinion for the Court and Chief Justice Earl Warren and Justices Hugo L. Black, William J. Brennan, Jr., and William O. Douglas dissented. Although the Court upheld the act’s registration provisions, it declined to rule on enforcement until enforcement was attempted. This led some observers to believe that the Court might rule against the McCarran Act. In Aptheker v. Secretary of State (1964), the Court ruled the denial of passports to Communist Party members to be an unconstitutional violation of the right to travel. The next year, the Court struck down the registration provisions in Albertson v. Subversive Activities Control Board (1965), calling them a violation of Fifth Amendment rights as registration led to sanctions. These decisions destroyed the effectiveness of the Subversive Activities Control Board, and Congress allowed the board to expire in the early 1970’s. Richard L. Wilson

The Cases

Cooper v. Aaron / 453

Cooper v. Aaron Citation: 358 U.S. 1 Date: September 12, 1958 Issues: Authority of the Supreme Court; desegregation Relevant amendments: Tenth, Fourteenth Significance: The Supreme Court held that fear of violence did not provide justification for postponing school desegregation, and it also affirmed that its constitutional interpretations were legally binding on governors and state legislators. In Brown v. Board of Education (1954), the Supreme Court ruled that racial segregation of the public schools violated the equal protection clause of the Fourteenth Amendment. The next year, in Brown II, the Court ordered desegregation to proceed “with all deliberate speed.” The Little Rock crisis of 1957-1958 occurred after a federal district judge approved a desegregation plan that scheduled nine African American students to enter Little Rock’s Central High School in September, 1957. When classes began, Arkansas Governor Orville Faubus and the state legislature acted on the premise that they had no legal obligation to enforce the Brown decision. Confronted with an open defiance to federal authority, President Dwight D. Eisenhower dispatched federal troops to restore order and to enforce the desegregation order.

President Dwight D. Eisenhower did not hesitate to send armed troops to enforce courtimposed desegregation orders. (National Archives)

454 / Corrigan v. Buckley

The Cases

With tensions in Little Rock continuing in 1958, the school board asked the district judge to withdraw the African American students from the school and to postpone desegregation until September, 1960. The judge accepted the proposal. In expedited proceedings, the Supreme Court reversed the judge’s ruling. Justice William J. Brennan, Jr., prepared a draft of an opinion, which was then reworked and signed by all nine justices. The joint opinion held that postponement was unacceptable because it would violate the constitutional rights of the African American students. In addition, the Court declared that “the federal judiciary is supreme in the exposition of the law of the Constitution,” meaning that state governments must recognize the Brown holding as “the supreme law of the land.” Never before had the Court expressed the doctrine of judicial supremacy in such strong terms. Although President Eisenhower personally disagreed with the Brown decision, he made it manifestly clear that he would use his executive powers to enforce the decrees and interpretations of the Court. Confident of presidential enforcement, the justices were encouraged to take a firm stand in the Cooper ruling. It was not until the Civil Rights Act of 1964 that Congress provided statutory support for the desegregation effort. Thomas T. Lewis

Corrigan v. Buckley Citation: 271 U.S. 323 Date: May 24, 1926 Issue: Restrictive covenants Relevant amendments: Fifth, Fourteenth Significance: The Supreme Court upheld a restrictive covenant in the District of Columbia, a ruling that would stand until 1948, more than twenty years later. Restrictive covenants blocked the sale of properties owned by whites to members of minority groups and were designed to maintain segregation in an area. When a white owner of property controlled by a restrictive covenant subsequently contracted to sell it to an African American, other white owners asked the District of Columbia federal court to enforce the covenant and block the sale. The district court upheld the covenant. The Supreme Court unanimously affirmed the lower court’s decision. Justice

The Cases

Counselman v. Hitchcock / 455

Edward T. Sanford, writing the opinion for the Court, disposed of various constitutional provisions. He noted that the Fifth Amendment was limited to the federal government (not individuals), that the Thirteenth Amendment protected African Americans only in their personal liberty (not contracts), and that the Fourteenth Amendment applied to states (not the District of Columbia). The Court further held that the 1866 Civil Rights Act granted all people the legal authority to contract but did not prohibit or invalidate contracts between private individuals such as restrictive covenants. Sanford also said that judicial enforcement of covenants was not the same as state action denying people their Fourteenth Amendment rights. This decision closed the door to racially integrated housing that had been partially opened by Buchanan v. Warley (1917). It lasted more than two decades until Shelley v. Kraemer (1948) upheld such covenants but banned judicial enforcement as a form of state action prohibited by the Fourteenth Amendment. Richard L. Wilson

Counselman v. Hitchcock Citation: 142 U.S. 547 Date: January 11, 1892 Issue: Self-incrimination, immunity against Relevant amendment: Fifth Significance: The Supreme Court upheld a person’s refusal to testify before a grand jury, stating that the privilege against self-incrimination extends beyond criminal trials to investigations such as grand jury proceedings. In Counselman v. Hitchcock, the Court considered a federal statute that granted witnesses immunity from criminal prosecution based on their testimony during judicial proceedings but not on their testimony before a federal grand jury. Charles Counselman asserted his Fifth Amendment privilege against self-incrimination in refusing to answer questions before a federal grand jury and asked for a writ of habeas corpus when he was confined for contempt of court for not answering. The Court unanimously upheld his refusal to testify. In his opinion for the Court, Justice Samuel Blatchford stated that the privilege against self-

456 / Cox v. Louisiana

incrimination could be used by an accused not only in a criminal trial but also in any investigation including grand jury proceedings. Federal immunity law could not compel the appellant to testify because its protective scope was less than the Fifth Amendment guarantee. The statute prohibited the direct use of testimony in subsequent prosecution of the witness but not the testimony’s use to search for other evidence. This broad privilege was narrowed substantially in Kastigar v. United States (1972) when the Court allowed evidence obtained independently to be used against a person who had testified under an immunity agreement. Richard L. Wilson

The Cases

Justice Samuel Blatchford argued that the privilege against self-incrimination could be used by accused persons in any investigations. (Library of Congress)

Cox v. Louisiana Citation: 379 U.S. 536 Date: January 18, 1965 Issue: Freedom of assembly Relevant amendment: First Significance: The Supreme Court overturned the conviction of a group of civil rights demonstrators, arguing that the group had a right to demonstrate peacefully even if local government officials disliked their political views. By a 7-2 vote, the Supreme Court ruled that the conviction of civil rights demonstrators in Louisiana must be reversed because the state had allowed other approved groups to block traffic in similar ways to those convicted in this case. In Cox, it appeared that the state had improperly convicted these demonstrators because of the unpopularity of their views. In

The Cases

Cox v. New Hampshire / 457

its decision, the Court was following the logic of time, place, and manner regulations that allow for safe, orderly streets but require like treatment of all demonstrators. Assembly is not as protected as speech is because the First Amendment qualifies assembly by the use of the word “peaceably.” This case should be contrasted with Adderley v. Florida (1966), in which the Court upheld the conviction of people who had demonstrated on the grounds of a county jail. Richard L. Wilson

Cox v. New Hampshire Citation: 312 U.S. 569 Date: March 31, 1941 Issues: Freedom of assembly; time, place, and manner regulations Relevant amendment: First Significance: The Supreme Court’s decision protected the right of local government officials to place nondiscriminatory time, place, and manner restrictions on demonstrators. Cox is part of a series of cases establishing the government’s right to place reasonable time, place, and manner regulations on assemblies as long as these laws do not prevent people from speaking out or favor some speakers over others. It is also one of a number of cases in which the Jehovah’s Witnesses challenged various laws as denials of their free exercise of religion. Although the Jehovah’s Witnesses were often successful, they did not prevail in Cox. A Manchester, New Hampshire, city ordinance required groups to have a parade license and pay a fee. Some Jehovah’s Witnesses marched single file through city streets carrying placards to advertise a meeting but refused to get a license or pay the fee. Upon their arrest, their leader argued that they were not having a parade. Further, they also asserted that the Manchester ordinance was vague, unreasonable, and arbitrary and deprived them of their First Amendment rights as guaranteed by the Fourteenth Amendment. In its unanimous decision, the Court upheld the ordinance solely as a means of regulating traffic and reasonably providing for orderly, safe streets. Richard L. Wilson

458 / Craig v. Boren

The Cases

Craig v. Boren Citation: 429 U.S. 190 Date: December 20, 1976 Issue: Sex discrimination Relevant amendments: Fifth, Fourteenth Significance: The Supreme Court adopted a heightened level of judicial scrutiny when dealing with gender-based classifications alleged to be discriminatory. Oklahoma law permitted eighteen-year-old women to purchase beer with 3.2 percent alcohol but required men to be twenty-one years old for the same privilege. Curtis Craig and a licensed vendor challenged the law. The state had statistical evidence demonstrating a reasonable basis for the law. The Supreme Court had recognized since 1971 that the equal protection clause of the Fourteenth Amendment applied to classifications based on sex. The issue in the Craig case was whether the law should be evaluated according to the rational basis test or the very demanding standard of strict scrutiny, as used in classifications based on race. By a vote of seven to two, the Court found that the Oklahoma law was unconstitutional. Writing for the majority, Justice William J. Brennan, Jr., demanded that any statute classifying by gender “must serve important governmental objectives and must be substantially related to these objectives.” Although the justices were badly divided, Craig established the intermediate level of scrutiny for determining whether particular gender distinctions are constitutional, and the compromise has continued ever since. Apparently, the decision did not apply to cases involving affirmative action programs. Thomas T. Lewis

Cruikshank, United States v. Citation: 92 U.S. 542 Date: March 27, 1876 Issues: Federal enforcement of civil rights; states’ rights Relevant amendment: Tenth

The Cases

Cruzan v. Director, Missouri Department of Health / 459

Significance: Based on narrow interpretations of the Fourteenth and Fifteenth Amendments, the Supreme Court severely limited the authority of the federal government to protect the civil rights of African Americans. Because state courts rarely prosecuted acts of violence against the freed slaves of the South, the Enforcement Act of 1870 made it a federal crime to engage in a conspiracy to deprive a citizen of constitutional rights. In Colfax, Louisiana, an armed group of white rioters killed about one hundred blacks gathered for a political meeting. Federal prosecutors used the Enforcement Act to prosecute and convict William Cruikshank and two others for participating in the Colfax massacre. The Supreme Court unanimously held that the indictments were invalid. In a complicated ruling, Chief Justice Morrison R. Waite concentrated on the difference between the rights of state and national citizenship. Any assaults on the rights of state citizenship, which included participation in state politics, were not enforceable in federal courts. In addition, the due process and equal protection clauses of the Fourteenth Amendment authorized federal legislation relating only to actions by state officials, not to acts of private persons. Finally, in charging interference with a Fifteenth Amendment right to vote, the indictments failed to specify that the defendants had been motivated by the race of the victims. The decision in United States v. Cruikshank left protection for most African American rights with the southern states, where few people sympathized with their cause. The decision reflected the national mood, which had become tired of federal intervention in southern politics. Thomas T. Lewis

Cruzan v. Director, Missouri Department of Health Citation: 497 U.S. 261 Date: June 25, 1990 Issue: Right to die Relevant amendments: Fifth, Fourteenth Significance: The Supreme Court ruled that the Fourteenth Amendment protects a competent adult’s “liberty interest” in refusing unwanted

460 / Cruzan v. Director, Missouri Department of Health

The Cases

medical treatment even if the result is death and that the U.S. Constitution permits, but does not require, state courts to demand “clear and convincing” evidence of the person’s desire before terminating life support services. In 1983 Nancy Cruzan suffered brain injuries in an automobile accident that left her in a permanent “vegetative state,” with no realistic hope for recovery. An implanted feeding tube provided her body with a constant source of nutrition and water. She was one of approximately ten thousand such cases in the United States. In 1987 Cruzan’s parents sought permission to have the feeding tube removed, which would result in her death. Missouri’s living will statute, however, required clear and convincing evidence that Nancy Cruzan herself would have wanted to have the tube removed. Because the parents could not produce the necessary evidence, the state courts rejected their request. By a 5-4 vote, the Supreme Court upheld the constitutionality of the Missouri law. In the majority opinion, Chief Justice William H. Rehnquist wrote that the requirement of clear and convincing evidence of a person’s desire was reasonable in view of the state’s interest in preserving human life. Not only was it possible for family members to be mistaken about what a person would desire, but there was also the real danger that some families might be motivated by a financial incentive to seek a person’s demise. Rehnquist noted that the Court in Jacobson v. Massachusetts (1905) had balanced an individual’s liberty interest in rejecting a medical procedure with the legitimate interests of the state. Rehnquist was careful not to define the extent of a person’s “right to die.” Based on the Court’s precedents as well as the common-law doctrine of informed consent, an 8-1 majority of the justices were willing to “assume” that the Constitution grants a competent person the right to refuse lifesaving nutrition. Justice Antonin Scalia was the only justice to reject this assumption. Rehnquist’s opinion did not attempt to draw a distinction between artificial nutrition and more complex forms of medical procedures, nor did it distinguish between patients facing imminent death and patients whose lives might be preserved for many years. Thus, the decision allowed states a great deal of latitude in making laws about living wills and related matters. The Missouri courts eventually ruled that new evidence provided enough justification to honor the request of the Cruzan family. In Washington v. Glucksberg (1997), the Court unanimously agreed that the Con-

The Cases

Cummings v. Missouri / 461

stitution does not guarantee any right to physician assistance in ending one’s life. Thomas T. Lewis

Cummings v. Missouri Citation: 71 U.S. 277 Date: March 20, 1867 Issue: Loyalty oaths Relevant amendment: First Significance: The Supreme Court overturned statutes requiring loyalty oaths, viewing them as unconstitutional ex post facto laws and bills of attainder. Justice Stephen J. Field wrote the opinions for both Cummings and its companion case, Ex parte Garland, which were decided by 5-4 votes with Justice Samuel F. Miller dissenting. Cummings involved a Missouri law that retroactively imposed loyalty oaths requiring people in various jobs to swear that they had not aided or sympathized with the southern cause during the Civil War. Garland dealt with a federal law requiring attorneys practicing in federal court to swear that they had not supported the Confederacy. Field noted that, although these statutes did not impose fines or imprisonment, they were punitive because they banned those who could not take oaths honestly from practicing their professions. Sections 9 and 10 of Article I of the U.S. Constitution ban bills of attainder and ex post facto laws at the state and federal level. Field found the statutes in Cummings and Garland to be One of Justice Stephen J. Field’s principal objections to loyalty oath statutes was that ex post facto legislation (laws that they constituted a form of ex post facto criminalized acts considered legal law. (Library of Congress) when committed) and bills of at-

462 / Darby Lumber Co., United States v.

The Cases

tainder because they imposed punishment without trial to a designated group of individuals. Miller, in dissent, argued that the statutes were not imposing punishment and therefore could not be either bills of attainder or ex post facto laws. This decision, never repudiated by the Supreme Court, was used in United States v. Brown (1965) to void a federal law that banned former communists from serving as labor union officials. Richard L. Wilson

Darby Lumber Co., United States v. Citation: 312 U.S. 100 Date: February 3, 1941 Issue: Regulation of manufacturing Relevant amendment: Tenth Significance: Using a broad interpretation of the commerce clause, the Supreme Court upheld a federal law mandating minimum wages and maximum hours for employees producing goods for interstate commerce. The Fair Labor Standards Act of 1938, the last major piece of New Deal legislation, applied to employees engaged “in commerce” and “in the production of goods for commerce.” Fred Darby, owner of a Georgia company making goods to be shipped out of state, was indicted for paying his employees less than the minimum wage. In his appeal, Darby referred to the precedent of Hammer v. Dagenhart (1918), which had held that the U.S. Congress, under the commerce clause and the Tenth Amendment, had no authority to regulate activities that were only indirectly connected to interstate commerce. By a 9-0 vote, the Court overturned Hammer and upheld the 1938 statute. Chief Justice Harlan Fiske Stone wrote that Congress possessed the comprehensive authority to regulate any intrastate activities that had either a direct or indirect effect on interstate commerce. Only the employees of companies engaging in purely local activities remained outside the protection of the federal minimum-wage law. Stone’s landmark opinion specifically repudiated the doctrine of dual federalism, so that the Tenth Amendment would no longer serve as a significant restraint on federal supervision of anything relating to interstate commerce. Thomas T. Lewis

The Cases

DeJonge v. Oregon / 463

Davis v. Beason Citation: 133 U.S. 333 Date: February 3, 1890 Issues: Freedom of religion; right to vote Relevant amendment: First Significance: The Supreme Court allowed a territory to deny the vote to members of a religious sect that advocated an illegal practice. In the landmark 1879 case, Reynolds v. United States, the Supreme Court upheld a federal ban on polygamy, a religious practice of members of the Church of Jesus Christ of Latter-day Saints (Mormons) at the time. Idaho subsequently enacted a territorial statute that denied the right to vote to anyone who practiced polygamy or who belonged to an organization that advocated polygamy. Samuel Davis and other nonpolygamous Mormons sued after they were not allowed to vote in the election of 1888. By a 9-0 vote, the Court upheld the statute. Taking a very narrow view of both religion and the free exercise clause, Justice Stephen J. Field construed the statute as simply excluding the privilege of voting from those who encouraged and approved of the commission of “odious” crimes. Although persons could not be punished for their beliefs, membership in a church was considered a conduct; therefore membership itself was not protected by the First Amendment. Few people would defend Davis a century later. In Romer v. Evans (1996), Justice Anthony M. Kennedy observed that Davis was no longer good law to the extent that it held that advocacy of a certain practice could be the basis for denying a person the right to vote. Thomas T. Lewis

DeJonge v. Oregon Citation: 299 U.S. 353 Date: January 4, 1937 Issue: Freedom of assembly and association Relevant amendment: First Significance: The Supreme Court, in overturning a conviction under a state criminal syndicalism law, incorporated the right of freedom of

464 / Dennis v. United States

The Cases

peaceable assembly and association to the states through the Fourteenth Amendment. Chief Justice Charles Evans Hughes wrote the Supreme Court’s unanimous opinion (Justice Harlan Fiske Stone did not participate) overturning the conviction of Dirk DeJonge under Oregon’s criminal syndicalism law. DeJonge had helped run a meeting sponsored by the Communist Party to protest actions taken by police against workers. Although DeJonge, some of the other leaders, and about 15 percent of attendees were affiliated with communists, the meeting was entirely orderly. Minor Communist Party activities may have taken place, but no one advocated violence or criminal syndicalism. The prosecution relied heavily on party literature not used in the meeting but found elsewhere that tangentially associated the Communist Party with syndicalism. The Oregon supreme court upheld DeJonge’s conviction on grounds that merely participating in a totally peaceful meeting called by the Communist Party could still violate the law. The Court reversed the decision, saying lawful discussion in a peaceful assembly is not a crime. This decision first applied the freedom of association to the states under the Fourteenth Amendment’s due process clause. Richard L. Wilson

Dennis v. United States Citation: 341 U.S. 494 Date: June 4, 1951 Issue: Freedom of association Relevant amendment: First Significance: The Supreme Court upheld the convictions of Communist Party members under the 1940 Smith Act, which led to more vigorous prosecution of alleged communists in the 1950’s. Chief Justice Fred M. Vinson wrote the 6-2 majority decision (Justice Tom C. Clark did not participate) in which the Supreme Court upheld the convictions of eleven Communist Party leaders for violating the 1940 Smith Act by teaching or advocating the “violent overthrow of the U.S. government.” Although the Smith Act had always been aimed at communists, the U.S. government had avoided confrontation with the Soviet

The Cases

DeShaney v. Winnebago County Department of Social Services / 465

Union, a World War II ally. As the Cold War began, Republicans and Democrats began to compete with each other to prove their anticommunist fervor. A seriously flawed trial led to the conviction of the eleven party members. The circuit court of appeals upheld their conviction, and the Court agreed to hear the case solely on the question of the Smith Act’s constitutionality, thereby eliminating many grounds for reversal. However, the tenor of the times and later changes in the composition of the Court largely appointed by Franklin D. Roosevelt made it likely that the anticommunist legislation would have been upheld in any case. Vinson significantly modified the clear and present danger test so that much less serious threats to public safety could be banned by creating a grave and probable danger standard. This view never actually achieved the status of a legal standard because only a plurality of Vinson and three others subscribed to it. Justice Robert H. Jackson rejected the modification of the clear and present danger rule but would have convicted the Communists for conspiracy anyway. Justice Felix Frankfurter disliked the Smith Act but was constrained by his view of judicial self-restraint. Justices Hugo L. Black and William O. Douglas wrote strong dissents attacking the majority for seriously misreading the clear and present danger test and damaging freedom of speech in the United States. Because one of the activities for which the convictions were upheld was the defendants’ plan to publish a newspaper, these dissents also alleged that freedom of the press was endangered. Freed from the constraints of previous interpretations, the government began a vigorous prosecution of the Communist Party that continued until the Court’s decision in Yates v. United States (1957) blunted the attack. However, Yates did not overturn Dennis or invalidate the Smith Act. The holding in Dennis is at variance with later decisions, but the Court never completely repudiated its grave and probable danger rule. Richard L. Wilson

DeShaney v. Winnebago County Department of Social Services Citation: 489 U.S. 189 Date: February 22, 1989 Issue: Due process clause Relevant amendments: Fifth, Fourteenth

466 / Dolan v. City of Tigard

The Cases

Significance: The Supreme Court held that a state was not liable if its social workers failed to remove a child from the custody of the father even after reports of serious child abuse. The Winnebago County Department of Social Services received numerous complaints of serious beatings administered to Joshua DeShaney by his father, Randy DeShaney, who was given custody of the boy in a divorce proceeding. Despite repeated reports from family members, physicians, case workers, and emergency medical personnel that the child had suffered from several beatings to the head, the social workers did not remove the boy from the home. Finally, the boy was beaten so badly that he suffered permanent brain damage. By a 6-3 vote, the Supreme Court ruled that a state had no constitutional obligation to protect a child from his father even though the state’s social service workers had received multiple reports of serious child abuse. In his opinion for the Court, Chief Justice William H. Rehnquist found that the Fourteenth Amendment’s due process clause was negatively worded and created no affirmative obligation for the state to act, even in cases when the state had notice and the child was very young. Justices William J. Brennan, Jr., Thurgood Marshall, and Harry A. Blackmun dissented vigorously, and Blackmun filed a separate dissent. Richard L. Wilson

Dolan v. City of Tigard Citation: 512 U.S. 374 Date: June 24, 1994 Issue: Takings Relevant amendment: Fifth, Fifteenth Significance: The Supreme Court held that the government may not attach conditions to building permits that result in the taking of private property without just compensation, in violation of the Fifth and Fourteenth Amendments. Florence Dolan applied for a building permit to expand her plumbing and electrical supply store in Tigard, Oregon. As part of a landmanagement program, the city refused to issue the permit unless she dedicated 10 percent of her land for two purposes: a public greenway for

The Cases

Dolan v. City of Tigard / 467

The Rehnquist Court in the same year it passed down the Dolan decision. (Collection of the Supreme Court of the United States)

flood control and a pedestrian/bicycle pathway to relieve traffic congestion in the city. Dolan claimed that this requirement of dedicating land for a permit constituted a taking of private property without compensation. The state’s high court rejected her claim. By a 5-4 vote, the Supreme Court remanded the case for reconsideration. Speaking for the majority, Chief Justice William H. Rehnquist concluded that in the circumstances, the city had the burden to show a “rough proportionality” between the building permit requirements and the individualized problems associated with the building project. Judging from the record, Rehnquist did not think the city had demonstrated a reasonable relationship between the project and the need for the greenway space and the pathway. If the city simply wanted some of Dolan’s land for drainage and recreation purposes, it would be required to pay her just compensation. In a dissent, Justice John Paul Stevens criticized the majority for imposing a “novel burden of proof” on a city implementing a valid land-use plan. Thomas T. Lewis

468 / Duncan v. Louisiana

The Cases

Duncan v. Louisiana Citation: 391 U.S. 145 Date: May 20, 1968 Issue: Trial by jury Relevant amendment: Sixth Significance: With this decision, the Supreme Court applied the Sixth Amendment’s right to jury trial to the states through the Fourteenth Amendment under the incorporation doctrine. Justice Byron R. White, writing for a 7-2 majority, held that a jury trial is mandatory in a state court if the same offense would be entitled to a jury trial in federal court. Through this ruling, he applied a portion of the Sixth Amendment through incorporation under the Fourteenth Amendment. The defendant had been convicted of a misdemeanor without benefit of a jury because Louisiana’s laws did not mandate jury trials for minor offenses. The Supreme Court held that a portion of the Bill of Rights must be considered part of due process if it is a part of the Anglo-American system of “ordered liberty,” and juries were a part of that. This strengthened the theory of incorporation, which held that due process must include any feature without which one could not imagine civilized society existing. Justices John Marshall Harlan II and Potter Stewart dissented because they feared a further erosion of states’ rights. Richard L. Wilson

Edmonson v. Leesville Concrete Co. Citation: 111 S.Ct. 2077 Date: June 3, 1991 Issue: Jury composition Relevant amendments: Sixth, Fourteenth Significance: The Supreme Court extended its ruling that potential jurors could not be peremptorily excluded on the basis of race from criminal trials to include civil trials.

The Cases

Edwards v. Aguillard / 469

In Batson v. Kentucky (1986), the Supreme Court ruled that litigants in criminal trials could not use peremptory challenges to exclude federal court jurors on the basis of race because such exclusions violated the excluded person’s Fifth Amendment rights. In this 6-3 decision, it extended its decision to civil as well as criminal trials. In his opinion for the Court, Anthony M. Kennedy argued that even if the litigants’ private attorneys, not the state, make the exclusion, state action is involved because the attorneys are using the public court forum. Private parties must follow the same rules the state does when it uses the courts. Justice Sandra Day O’Connor was joined in a forceful dissent by Justices William H. Rehnquist and Antonin Scalia, who argued that the attorneys’ challenges of jurors were essentially private choices. The dissenters rejected the idea that state action was inherent in all court proceedings. Richard L. Wilson

Edwards v. Aguillard Citation: 482 U.S. 578 Date: June 19, 1987 Issue: Establishment of religion Relevant amendment: First Significance: The Supreme Court struck down a state law requiring balanced treatment of “evolution science” and “creation science,” based on the establishment clause of the First Amendment. In Epperson v. Arkansas (1968), the Supreme Court infuriated many religious groups when it overturned a state law that prohibited the teaching of Darwinian evolution in the public schools. A Louisiana statute, designed to get around the ruling, prohibited schools from teaching evolutionary theory unless the theories of creationism were also taught. Proponents of the statute argued that evolutionary theory is an integral part of the religion of secular humanism and asserted that creationism is a respectable scientific theory. Principal Don Aguillard, supported by the American Civil Liberties Union, challenged the constitutionality of the law. By a 7-2 vote, the Court agreed with the challengers. Applying the three-part Lemon test (established in Lemon v. Kurtzman, 1971), Justice William J. Brennan, Jr., emphasized that the purpose of the statute was to

470 / Edwards v. California

The Cases

restructure the science curriculum in conformity with a viewpoint associated with particular religious sects. Rejecting the academic freedom defense, Brennan noted that science teachers in Louisiana already enjoyed the freedom to teach a variety of theories about the origins of life. In dissent, Justice Antonin Scalia criticized the majority for looking at the intent rather than the effect of the statute, and he also argued against the portion of Lemon requiring a secular purpose for statutes. Thomas T. Lewis

Edwards v. California Citation: 314 U.S. 160 Date: November 24, 1941 Issue: Right to travel Relevant amendment: Tenth Significance: The Supreme Court, in striking down a law barring indigents from entering California, strengthened the constitutional right to travel, especially for poor citizens.

In his majority opinion on Edwards, Justice James F. Byrnes drew on the Constitution’s commerce clause. (Library of Congress)

The Cases

Edwards v. South Carolina / 471

The Supreme Court unanimously ruled that California’s Great Depression era “Okie Law” was unconstitutional in its attempt to bar any person from bringing an indigent person into California. Justice James F. Byrnes, in his opinion for the Court, relied on Article I, section 8 of the Constitution (the commerce clause) and viewed the issue as the transportation of people as if they were property in interstate commerce. In his concurrence, Justice Robert H. Jackson agreed with the result but attacked the reasoning. He objected to equating people with property to give them constitutional rights as U.S. citizens. Jackson argued that the Fourteenth Amendment’s privileges and immunities clause should be used to grant people the right to travel across state lines, which he saw as a basic feature of U.S. citizenship. Jackson’s view would strengthen the privileges and immunities clause, which is not frequently cited by the Court. Richard L. Wilson

Edwards v. South Carolina Citation: 372 U.S. 229 Date: February 5, 1963 Issue: Freedom of assembly Relevant amendment: First Significance: In this incorporation case, the Supreme Court held that local officials could not block an otherwise lawful demonstration because they disliked the demonstrators’ political views. About two hundred African American students marched peacefully in small groups from a church to the South Carolina state capitol, an obviously public forum, to protest the state’s racially discriminatory laws. A few dozen police officers initially told them they could march peacefully but about an hour later ordered them to disperse under threat of arrest. A crowd had gathered to watch the demonstrators but did not seem threatening, and the police presence was ample. The demonstrators responded by singing patriotic and religious songs until some two hundred demonstrators were arrested and convicted of breach of the peace. Their conviction was upheld by the South Carolina supreme court. The Supreme Court, by an 8-1 vote, reversed the convictions of the civil rights demonstrators. Justice Potter Stewart, in the majority opinion, ap-

472 / Eichman, United States v.

The Cases

plied the First Amendment right to freedom of assembly to the states, refusing to let the states bar demonstrations of unpopular views in traditional forums. In line with other time, place, and manner decisions, the Court used the Fourteenth Amendment’s due process clause to incorporate the peaceable assembly portion of the First Amendment and to apply it to the states. Justice Tom C. Clark dissented, defending the state’s action Richard L. Wilson

Eichman, United States v. Citation: 496 U.S. 310 Date: June 11, 1990 Issues: Symbolic speech; flag desecration Relevant amendment: First Significance: The Supreme Court reaffirmed its 1989 decision that flag burning was a constitutionally protected form of free speech. The Supreme Court, by a 5-4 majority, struck down the 1989 Flag Protection Act, which Congress passed to void the Court’s ruling in Texas v. Johnson (1989), which overturned a Texas flag burning statute. Justice William J. Brennan, Jr., in the opinion for the Court, suggested that the justices would probably regard virtually any law directed at forms of flag desecration as unconstitutional because such laws would inevitably imply governmental disapproval of the message inherent in flag burning. In Johnson, the Court declared a Texas statute unconstitutional because it explicitly stated that the desecration must be done to “offend” someone. This provision flew in the face of the cardinal tenet of allowable time, place, and manner regulations, namely, that they may not be used by officials who do not like the ideas expressed. Congress sought to circumvent the Johnson holding by carefully avoiding the expression of ideas question, but the Court found that the government’s purpose was clearly the suppression of ideas and, therefore, that the strict scrutiny test needed to be applied to the congressional enactment. The Court found the 1989 federal law could not pass such a strict test. Justices William H. Rehnquist, Byron R. White, John Paul Stevens, and Sandra Day O’Connor dissented, arguing that there were so many ways that demonstrators

The Cases

Elfbrandt v. Russell / 473

could exercise their First Amendment rights that laws preventing flag desecration were not a real infringement on their rights. Richard L. Wilson

Eisenstadt v. Baird Citation: 405 U.S. 438 Date: March 22, 1972 Issues: Reproductive rights; right of privacy; equal protection Relevant amendments: Fifth, Ninth, Fourteenth Significance: Based on an individual’s rights to privacy and equality, the Supreme Court struck down a Massachusetts law that made it a felony to provide contraceptives to unmarried persons. In the landmark case Griswold v. Connecticut (1965), the Supreme Court recognized a constitutional right to privacy, which included the right of married persons to obtain contraceptives. In Eisenstadt, the justices voted six to one to extend the same right to single people. Speaking for the majority, Justice William J. Brennan, Jr., emphasized that the equal protection clause of the Fourteenth Amendment prohibited discrimination against single people. The right of privacy, grounded in a substantive due process reading of the Fourteenth Amendment, included “the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” Going beyond Griswold, the Eisenstadt decision explicitly recognized that the right to privacy was inherent in the individual rather than in the marital relationship, and it did not justify the right on the basis of history and tradition. The two decisions helped lay the theoretical foundation for Roe v. Wade (1973). Thomas T. Lewis

Elfbrandt v. Russell Citation: 384 U.S. 11 Date: April 18, 1966 Issue: Loyalty oaths Relevant amendment: First

474 / Elrod v. Burns

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Significance: The Supreme Court invalidated an Arizona statute and its accompanying statutory gloss, which together required employees to take an oath to support the federal and state constitutions, threatening prosecution for perjury and immediate discharge of an employee belonging to any organization committed to overthrowing the government. Barbara Elfbrandt, a teacher and a Quaker, refused to take the oath and sued on the grounds that the legislature had not adequately explained the meaning of the statute and its accompanying gloss. Her lawyers referred to Baggett v. Bullitt (1964) and other cases in which the Supreme Court had struck down loyalty oaths that had restricted individual rights to free expression of ideas and political association. Speaking for a 5-4 majority, Justice William O. Douglas argued that the legislative gloss interfered with the freedom of association guaranteed by the First and Fourteenth Amendments. He referred to several precedents in which the Court had held that a blanket prohibition of association with groups having both legal and illegal purposes interfered with the freedom of political expression and association. Elfbrandt was typical of a half dozen cases in which the Court overturned loyalty oaths on grounds of vagueness or overbreadth. However, in Cole v. Richardson (1972), the Court upheld a requirement that state employees take an oath or affirmation similar to the one in Article VI of the U.S. Constitution. Thomas T. Lewis

Elrod v. Burns Citation: 427 U.S. 347 Date: June 28, 1976 Issue: Freedom of association Relevant amendment: First Significance: The Supreme Court held that patronage dismissals of nonpolicy-making employees infringed on First Amendment rights to political beliefs and association. In Cook County, Illinois, an elected Democratic sheriff attempted to remove several noncivil service employees who had been appointed by the

The Cases

Employment Division, Department of Human Resources v. Smith / 475

previous sheriff, a Republican. By a 5-3 vote, the Court upheld a court of appeals judgment for injunction relief. Speaking for a plurality, Justice William J. Brennan, Jr., concluded that the First Amendment prohibited patronage dismissals except in policy-making positions. A few years later, the Court expanded the immunity of most noncivil service employees from penalties based on political affiliation in Branti v. Finkel et al. (1980) and Rutan v. Republican Party of Illinois (1990). Thomas T. Lewis

Employment Division, Department of Human Resources v. Smith Citation: 494 U.S. 872 Date: April 17, 1990 Issue: Freedom of religion Relevant amendment: First Significance: Narrowly interpreting the free exercise clause of the First Amendment, the Supreme Court ruled that the states were not required to make a religious exception for the use of illegal drugs. Alfred Smith and another Native American were fired from their jobs after their employer discovered that they occasionally smoked the hallucinogenic drug peyote as a part of tribal religious ceremonies. The use of peyote was illegal in Oregon, and the state’s policy was to deny unemployment benefits to anyone discharged for work-related misconduct. The two men argued that the denial of benefits unconstitutionally infringed on their right to religious freedom. Their lawyers referred to Sherbert v. Verner (1963), which had required states to justify any indirect restraints on religion according to the “compelling state interest” standard. In the Smith case, however, the Supreme Court voted six to three to uphold Oregon’s policy. Justice Antonin Scalia argued that states had no obligation to make exceptions for laws that were reasonable, secular in intent, and generally applicable to all persons. Such matters were left up to legislative discretion, even if an unfortunate consequence was an “incidental burden” on unconventional religious practices. Although Justice Sandra Day O’Connor joined the majority in upholding Oregon’s policy,

476 / Engel v. Vitale

The Cases

she joined the three dissenters in wanting to continue Sherbert’s standards of strict scrutiny. Religious leaders and civil libertarians were outraged at the Smith decision. In the Religious Freedom Restoration Act of 1993, Congress required courts to return to the standards of Sherbert, but the Court overturned this requirement in Boerne v. Flores (1997). Thomas T. Lewis

Engel v. Vitale Citation: 370 U.S. 421 Date: June 25, 1962 Issue: Establishment of religion Relevant amendment: First Significance: The Supreme Court, by invalidating a nondenominational prayer, first banned prayers in public schools as an unconstitutional establishment of religion. Justice Hugo L. Black wrote the 7-1 opinion, in which Justice Byron R. White did not participate. The Supreme Court invalidated a twenty-twoword nondenominational school prayer composed by New York’s educational authority as an unconstitutional establishment of religion. Having previously applied the prohibition against the establishment of religion to the states under the Fourteenth Amendment in Everson v. Board of Education of Ewing Township (1947), the Court needed only to clarify what it meant by a “wall of separation between church and state.” Engel raised the wall much higher. Black provided a lengthy review of British and American history to justify his decision but did not cite any specific Court precedent. He opined that this decision would not block all public expression of religion but held that schools could not sponsor such expressions. Although the Court was supported by a number of groups that filed amicus curiae (friend of the court) briefs, when it sided with those who wanted a high wall, it provoked an intense reaction from many conservative religious groups. The storm of criticism did not deter the Court, which persisted in its position. Justice Potter Stewart was the lone dissenter, accusing the majority of misreading the First Amendment’s religious clauses, which forbade only governmental establishment of an official church. To do

The Cases

Escobedo v. Illinois / 477

otherwise was to open up unnecessary conflicts with the free exercise provision that Stewart thought was preeminent. Richard L. Wilson

Epperson v. Arkansas Citation: 393 U.S. 97 Date: November 12, 1968 Issue: Establishment of religion Relevant amendment: First Significance: The Supreme Court found laws banning the teaching of evolution to be an unconstitutional establishment of religion. The Supreme Court unanimously overturned an Arkansas supreme court ruling that upheld Arkansas “Monkey Law” statutes banning the teaching of evolution in public elementary schools, secondary schools, and universities. The Court held that Arkansas violated the freedom of religion mandate of the First Amendment as applied to the states by the Fourteenth Amendment under the incorporation doctrine. Justice Abe Fortas wrote the majority opinion, with Justices John Marshall Harlan II and Hugo L. Black concurring. In 1982 Arkansas responded by passing a new law that required all public schools to “balance” any teaching of evolution with the teaching of creation by a “supreme power.” This was declared unconstitutional in a federal district court in McLean v. Arkansas Board of Education (1982). This case was very similar to one covering a Louisiana policy later declared unconstitutional by the Court in a 7-2 decision in Edwards v. Aguillard (1987). Richard L. Wilson

Escobedo v. Illinois Citation: 378 U.S. 478 Date: June 22, 1964 Issue: Defendants’ rights Relevant amendments: Fifth, Sixth Significance: The Supreme Court overturned a murder conviction because the accused was never warned of his right to remain silent. This

478 / Everson v. Board of Education of Ewing Township

The Cases

decision helped transform police behavior toward those accused of committing crimes. In this early defendants’ rights case, Danny Escobedo was taken to the police station as a murder suspect but was denied repeated requests to speak to his lawyer. His lawyer was, in turn, denied repeated requests to speak to his client. Never warned of his right to remain silent, Escobedo made some incriminating statements and ultimately confessed. His confession was key evidence at the trial, which resulted in his conviction. On reaching the Supreme Court, his confession was thrown out as improperly taken and his conviction overturned. Justice Arthur J. Goldberg wrote the decision for the Court, which ruled five to four that neither federal nor state courts could admit into evidence statements taken by police from a defendant who was not allowed to talk to a lawyer or warned to remain silent. Goldberg’s decision was not clearly written, apparently reflecting divisions among the justices as to the proper rule to adopt. The confusion among police, lawyers, and judges led the Court to take up the issue again in Miranda v. Arizona (1966) when a clearer, broader ruling was provided. Both decisions were controversial; critics charged that the Court was turning criminals loose on technicalities. In both cases, Justices Tom C. Clark, Potter Stewart, Byron R. White, and John Marshall Harlan II dissented. Richard L. Wilson

Everson v. Board of Education of Ewing Township Citation: 330 U.S. 1 Date: February 10, 1947 Issue: Establishment of religion Relevant amendment: First Significance: The Supreme Court upheld bus fare reimbursements for private school students in the first case to use the Fourteenth Amendment to apply the First Amendment’s establishment of religion clause to the states.

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Everson v. Board of Education of Ewing Township / 479

Justice Hugo L. Black wrote the 5-4 opinion for the Supreme Court; Justices Robert H. Jackson, Felix Frankfurter, Wiley B. Rutledge, Jr., and Harold H. Burton dissented. On one level, all nine justices agreed that the establishment of religion clause applied to the states and that government should be neutral with respect to religion, neither aiding nor obstructing it. The disagreement was over whether the principle of neutrality toward religion was properly applied in this case. New Jersey law authorized school boards to reimburse parents for the cost of bus transportation to attend school, whether public or parochial. Arch Everson was a local taxpayer in Ewing township who believed this violated the establishment clause. The four dissenting justices agreed with him, but the majority on the Court believed bus fare payment was remote from any religious purpose. They believed that the money for bus transportation would have been paid to all parents regardless of the kind of school their children attended. Depriving Roman Catholic parents of the payments forced them to pay taxes to support the transportation of other children while not receiving the benefit themselves. The larger point of

Justice Harold Burton (far right) with his family; Burton was one of the dissenters on Everson. (Library of Congress)

480 / Feiner v. New York

The Cases

this case was to establish that neither the state nor the federal government could support a religious institution, and on that point, all agreed. Richard L. Wilson

Feiner v. New York Citation: 340 U.S. 315 Date: January 15, 1951 Issue: Freedom of speech Relevant amendment: First Significance: In this street oratory case, the Supreme Court tolerated a level of government control of speech that is no longer acceptable. Chief Justice Fred M. Vinson wrote the opinion for the 6-3 majority over strong dissents from Justices Hugo L. Black, William O. Douglas, and Sherman Minton. Irving Feiner, a college student, stood on a box making a speech to a racially and politically mixed audience of more than seventy people who had a strongly mixed reaction to the speech and seemed to become unruly. Feiner refused to stop even after requested to do so by a police officer and was arrested for violating a New York law making it a “breach of the peace” to use intentionally “abusive language.” Despite Feiner’s assertion of First Amendment protection, the Supreme Court upheld his conviction as necessary to stop a “clear and present danger to public safety.” Black’s strong dissent argued that Feiner was being punished for unpopular political views. Similar speech was judged to be under First Amendment protection in Brandenburg v. Ohio (1969). Richard L. Wilson

Ferguson v. City of Charleston Citation: 121 S.Ct. 1281 Date: March 21, 2001 Issue: Search and seizure Relevant amendment: Fourth Significance: The Supreme Court held that the Fourth Amendment prohibits hospitals from the nonconsensual testing of pregnant women

The Cases

First English Evangelical Lutheran v. County of Los Angeles / 481

for illegal drugs if the primary purpose of the testing is to notify the police of illegal behavior. A public hospital of Charleston, South Carolina, reacting to a growing concern about babies born addicted to crack cocaine because of their mothers’ drug usage, instituted a program of automatically testing maternity patients for cocaine and other illegal drugs, and of alerting the police when the test results were positive. The police then used the threat of prosecution to coerce the women into substance abuse treatment. A small number of noncooperative women were prosecuted. In a suit against the city, Crystal Ferguson and nine other plaintiffs alleged that the tests were unconstitutional in the absence of either a warrant or informed consent. The city argued that the program was justified by the “special need” of preventing pregnant women from endangering fetuses they were carrying. By a 6-3 vote, the U.S. Supreme Court agreed with the plaintiffs. Writing for the majority, Justice John Paul Stevens explained that the “special needs” exception to the Fourth Amendment, which the Court had allowed to protect the public safety in special circumstances, did not apply to programs which were so directly connected to law enforcement. While the ultimate goal of the program might have been to coerce the women into treatment, the immediate objective of the searches was to obtain evidence of wrongdoing that would be admissible in criminal prosecutions. The question of whether any of the ten plaintiffs had voluntarily consented to the tests was left to the lower courts to decide. Thomas T. Lewis

First English Evangelical Lutheran Church of Glendale v. County of Los Angeles Citation: 482 U.S. 304 Date: June 9, 1987 Issues: Zoning; takings clause Relevant amendment: Fifth Significance: In this case involving buildings in a floodplain, the Supreme Court first ruled that a zoning ordinance could result in a taking, thus requiring just compensation under the Fifth Amendment.

482 / Florida v. Bostick

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A flood destroyed buildings that belonged to the First English Evangelical Lutheran Church in Southern California. The church found it could not rebuild because the buildings had been constructed on a floodplain, and a county ordinance banned building in such areas. The church challenged the ordinance, and California courts found the church could recover only if the ordinance was ruled an unlawful taking and the county refused to withdraw the ordinance. The Supreme Court found that the rescinding of an invalid ordinance was not an adequate remedy and the county must pay for excessive interference during the time the ordinance was in effect. The Court did not determine exactly when the taking actually occurred and how the damages might be calculated but did say that small delays that are a normal part of the process are not a taking. Justice John Paul Stevens expressed his concern, in his dissent, that this ruling would have a chilling effect on land-use planning because local governments might worry about potential liability. The case was returned to the lower courts, which found that the ordinance was not a taking. Richard L. Wilson

Florida v. Bostick Citation: 501 U.S. 429 Date: June 18, 1991 Issue: Search and seizure Relevant amendment: Fourth Significance: The Supreme Court held that the Fourth Amendment allows the controversial police practice of randomly approaching individuals in public places and asking them for permission to search their belongings, as long as the request is not coercive in nature. It is an elementary principle of law that persons may waive their constitutional rights. In Schneckloth v. Bustamonte (1973), the Court held that, when a suspect is not in custody, the evidence obtained in a consensual search may be used in a criminal trial even when the suspect did not know that he could refuse to agree to the search. Encouraged by this ruling, some police officers routinely boarded buses or trains and asked individual passengers for permission to search their luggage. Using this technique, two officers found cocaine in a bag belonging to Terrance Bostick. The police claimed that they advised Bostick of his right to refuse the

The Cases

Frank v. Mangum / 483

search, but he denied that he gave his permission. After the trial court denied Bostick’s motion to suppress the evidence, the Florida supreme court held that Bostick had been unconstitutionally seized because a “reasonable person” would not have felt free to leave the bus to avoid police questioning. By a 6-3 vote, the Supreme Court reversed the judgment. Justice Sandra Day O’Connor’s majority opinion quoted earlier decisions holding that the police did not need reasonable suspicion in order to ask questions of a person in a public place and that such questioning did not constitute a seizure. Because there were many circumstances preventing Bostick from leaving the bus, O’Connor concluded that the legal issue was not whether a reasonable person would have felt free to leave but rather whether a reasonable person would have felt free to refuse to submit to the search. The “reasonable person test,” moreover, presupposes “an innocent person.” Thus, the Court remanded the case to the state courts for a reexamination of “all the circumstances” of the search in order to decide whether Bostick had given his consent voluntarily. Expanding upon Bostick in Ohio v. Robinette (1996), the Court ruled that the police are not required to inform motorists who are stopped for other reasons that they are “free to go” before their consent will be recognized as voluntary. Thomas T. Lewis

Frank v. Mangum Citation: 237 U.S. 309 Date: April 19, 1915 Issues: Trial by jury; habeas corpus Relevant amendments: Fifth, Fourteenth Significance: The Supreme Court refused federal relief for a defendant convicted of murder in state court under conditions of mob intimidation. When Leo Frank, a Jewish capitalist, was tried in Georgia for the murder of a young woman, a large anti-Semitic mob intimidated the jury as it reached a guilty verdict. Almost all observers agreed that the trial did not conform to the due process requirements of the Fourteenth Amendment. Based on traditional notions of federalism, nevertheless, the federal

484 / Frontiero v. Richardson

Writing for the majority in Frank v. Mangum, Justice Mahlon Pitney upheld the lower court’s hesitancy to intervene in a state criminal proceeding. (Collection of the Supreme Court of the United States)

The Cases

district court rejected Frank’s petition for a writ of habeas corpus. Speaking for the 7-2 majority, Justice Mahlon Pitney upheld and defended the lower court’s hesitancy to intervene in a state criminal proceeding. Several years later, the Court in Moore v. Dempsey (1923) agreed to grant habeas corpus relief for defendants convicted in a similar mob-dominated trial. Justice Oliver Wendell Holmes dissented in Frank and wrote the majority opinion in Moore. Thomas T. Lewis

Frontiero v. Richardson Citation: 411 U.S. 677 Date: May 14, 1973 Issue: Sex discrimination Relevant amendment: Fifth Significance: The Supreme Court reaffirmed that discrimination based on sex is contrary to the equal protection clause of the Fifth Amendment, but only a plurality of the justices recognized all gender classifications as inherently suspect. A federal law automatically allowed a male member of the armed service to claim his spouse as a dependent, but a female member did not receive this benefit unless she could show that her spouse depended on her for more than half of his support. Sharron Frontiero, a married Air Force lieutenant, asserted that the policy was unconstitutional. By an 8-1 vote, the Supreme Court upheld her claim. Justice William J. Brennan, Jr., speaking for a four-member plurality, wanted to declare that all gender classifications were suspect, which would require that they be judged by the same stringent standards accorded to classifications based on race. He noted that sex was an immu-

The Cases

Frothingham v. Mellon / 485

table characteristic, that it had long been the basis of invidious discrimination, and that congressional endorsement of the Equal Rights Amendment demonstrated public acknowledgment of the problem. Justice Lewis F. Powell, Jr., speaking for three justices, argued that a decision on the level of scrutiny was not necessary to decide the case. In addition, because the ratification of the Equal Rights Amendment (which never took place) might settle the scrutiny issue, the Court should not preempt a political decision, which the Constitution reserved to the states. In Craig v. Boren (1976), the Court returned to the issue of whether to apply the rational basis or strict scrutiny test when examining allegations of sex discrimination, and the majority agreed on a compromise: heightened, or intermediate, scrutiny. Thomas T. Lewis

Frothingham v. Mellon Citation: 262 U.S. 447 Date: June 4, 1923 Issue: Taxing and spending clause Relevant amendment: Fifth Significance: The Supreme Court held that payment of taxes does not establish the standing to sue necessary to challenge the constitutionality of congressional spending statutes. Harriet Frothingham filed suit as a federal taxpayer to prevent the secretary of the treasury from spending money under the Maternity Act of 1921, which provided grants to the states for programs designed to reduce maternal and infant mortality. She alleged that the statute violated the Tenth Amendment and that it also deprived taxpayers of property without due process of law. By a 9-0 vote, the Supreme Court ruled that the suit was not a legitimate judicial controversy because Frothingham lacked standing to sue. Justice George Sutherland reasoned that the plaintiff in the case would have to show an immediate and direct personal injury from the enforcement of the statute and not merely a remote and uncertain interest shared with all taxpayers. Sutherland wrote that a taxpayer of a municipality would have the necessary standing to sue, but he did not mention possible taxpayer

486 / Fullilove v. Klutznick

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challenges to spending by the states. The Court substantially modified the rule against federal taxpayer standing in Flast v. Cohen (1968). Thomas T. Lewis

Fullilove v. Klutznick Citation: 448 U.S. 448 Date: July 2, 1980 Issue: Affirmative action Relevant amendment: Fifth Significance: The Supreme Court upheld a federal public works program that required a 10 percent set-aside of federal funds for minoritycontrolled businesses. The Public Works Employment Act of 1977 was the first federal statute to include an explicitly race-conscious classification since the Freedman’s Bureau Act of 1877. Nonminority contractors challenged the act as a violation of the equal protection component of the Fifth Amendment’s due process clause. The six justices voting to uphold the statute were divided into two plurality opinions, each supported by three justices. In one opinion, Chief Justice Warren E. Burger deferred to the special powers of Congress under the spending and commerce clauses as well as the enforcement clause of the Fourteenth Amendment. Applying the strict scrutiny test, moreover, Burger concluded that the set-asides were an appropriate means for the Congress to pursue its compelling interest “in redressing the discrimination that affects minority contractors.” In the other plurality opinion, Justice William J. Brennan, Jr., insisted that whites as a class did not suffer from historical discrimination, and therefore, he argued that all affirmative action programs should be judged according to the standard of intermediate scrutiny. The Fullilove decision encouraged the passage of numerous set-aside programs at the federal, state, and local levels. The Court, however, put stringent limits on such programs in Richmond v. J. A. Croson Co. (1989) and Adarand Constructors v. Peña (1995), holding that all racial classifications must be reviewed according to the strict scrutiny test. Thomas T. Lewis

The Cases

Furman v. Georgia / 487

Furman v. Georgia Citation: 408 U.S. 238 Date: June 29, 1972 Issue: Capital punishment Relevant amendment: Eighth Significance: The Supreme Court held that capital punishment as commonly practiced in 1972 constituted cruel and unusual punishment and thus violated the Eighth and Fourteenth Amendments. By the late 1960’s the majority of Americans opposed the death penalty. The Legal Defense Fund (LDF) of the National Association for the Advancement of Colored People led a legal crusade aimed at either reforming or eliminating the use of executions. In McGautha v. California (1971), the Supreme Court rejected the LDF’s argument against the imposition of the death penalty without jury guidelines and a bifurcated trial. The next year, nevertheless, the LDF reappeared before the Court and challenged the death sentences of William Furman and two other defendants. At the time, six hundred prisoners were on death row. A majority of five justices endorsed a short per curiam opinion overturning the death penalty statute of Georgia, but there was no opinion for the majority. In fact, all nine justices wrote separate opinions, totaling some 243 pages. Only two justices—William J. Brennan, Jr., and Thurgood Marshall—held that capital punishment was inherently unconstitutional. They both argued that the punishment was degrading to human dignity and that it was both unnecessary and ineffective as a deterrent to crime. In contrast, the other three justices of the majority refused to rule on the legality of capital punishment itself, but they found that the absence of clear standards for juries and judges resulted in arbitrary application of the death penalty. The four dissenters, all appointed by President Richard M. Nixon, emphasized American traditions, the Court’s precedents, and the importance of federalism. Following the Furman decision, thirty-five state legislatures rewrote their capital punishment statutes in an attempt to satisfy the Court’s concerns. Many observers speculated that the Court would probably not approve of the revisions. In Gregg v. Georgia (1976), however, a 7-2 majority of the justices found that Georgia’s revamped statute satisfied the requirements of the Constitution. Thomas T. Lewis

488 / Gault, In re

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Gault, In re Citation: 387 U.S. 1 Date: May 15, 1967 Issue: Juvenile justice Relevant amendments: Fifth, Sixth, Fourteenth Significance: The Supreme Court, in a landmark decision, provided for the rights of juveniles accused of committing crimes Justice Abe Fortas, writing for an 8-1 majority, upheld a habeas corpus petition for a fifteen-year-old boy who had been sent to a juvenile detention center without notice to his parents. The Supreme Court ruled that juveniles had to be accorded the same rights of notice, rights to legal counsel and to confront and cross-examine witnesses, and privilege against selfincrimination as were accorded to adults under the due process clause of the Fourteenth Amendment. For most of the twentieth century, juveniles were treated differently from adults in the belief that juveniles should have less adversarial, more informal adjudication of criminal activity. As the numbers of juveniles committing crimes rose, calls for more control increased. In a parallel development, the Court, under Chief Justice Earl Warren, also attempted to increase the protections for those accused of crimes, including juveniles, as in this ruling. In his partial dissent, Justice John Marshall Harlan II questioned whether Gault was a proper use of the due process clause. Justice Potter Stewart dissented, arguing that the decision made the juvenile and adult systems too similar. Richard L. Wilson

Gideon v. Wainwright Citation: 372 U.S. 335 Date: March 18, 1963 Issue: Right to counsel Relevant amendment: Sixth Significance: In this landmark case, the Supreme Court ruled that counsel must be provided for indigents accused of serious crimes.

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Gideon v. Wainwright / 489

Clarence Earl Gideon had convictions for petty crimes as a young man but no criminal convictions when he was arrested for breaking into a poolroom to steal coins and beverages. He requested an attorney be appointed for him, but the judge declined because Florida state law provided court-appointed attorneys only in capital cases. Although Gideon represented himself perhaps better than the average layperson, he was convicted and sentenced as a habitual criminal to five years in prison. While in prison, he Abe Fortas’s brilliant success in representing filed an in forma pauperis (pauGideon contributed to his appointment to the per’s) petition for a writ of haSupreme Court two years later. (Library of Congress) beas corpus. In Betts v. Brady (1942), the Supreme Court required that states provide counsel only if special circumstances existed, but many states had developed legislation that provided court-appointed counsel for indigents. After 1951, the Court had consistently found “special circumstances” in every case involving states that failed to provide counsel for indigents, and many believed the Betts holding was ripe to be overturned. The Court appointed a well-known Washington, D.C., lawyer, Abe Fortas, who later became a Supreme Court justice, to represent Gideon. Fortas obtained a broad overturning of the Betts ruling. The Court unanimously reversed earlier decisions, including Betts v. Brady, that allowed states to fail to provide counsel to indigents accused of serious crimes by applying the Sixth Amendment to the states through incorporation. When the case was returned to Florida, a newly appointed local attorney successfully attacked the prosecution’s case and demonstrated the wisdom of the Court’s requirement by showing that the most likely perpetrators of the crime were the very witnesses the prosecution had called against Gideon. Gideon laid the ground work for the far more controver-

490 / Gitlow v. New York

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sial Escobedo v. Illinois (1964) and Miranda v. Arizona (1966), which involved police interrogations without the presence of legal counsel. Richard L. Wilson

Gitlow v. New York Citation: 268 U.S. 652 Date: June 8, 1925 Issue: Freedom of speech Relevant amendment: First Significance: Although the Supreme Court upheld the conviction of a man for writing and distributing a socialist pamphlet, it determined that the First Amendment guarantee of freedom of speech is so central to the notion of due process under the Fourteenth Amendment that it must be required of the states under the incorporation doctrine.

Justice Edward T. Sanford, author of the landmark decision in Gitlow v. New York. (Collection of the Supreme Court of the United States)

Justice Edward T. Sanford wrote the opinion for the 7-2 majority upholding the conviction of a socialist, Benjamin Gitlow, for writing and distributing a pamphlet advocating strikes, socialism, and class action in “any form.” American Civil Liberties Union attorney Walter H. Pollak defended Gitlow, making a strong case for freedom of expression and succeeding in persuading a unanimous Court to apply the freedom of speech and press sections of the First Amendment to the states through the incorporation doctrine of the Fourteenth Amendment. He failed, however, to get his client’s conviction overturned because the majority thought that Gitlow’s pamphlet could be a “spark” that could create a real danger to society.

The Cases

Goldberg v. Kelly / 491

Justice Oliver Wendell Holmes dissented, arguing that Gitlow’s pamphlet was not likely to incite action and using his clear and present danger doctrine, which distinguished between speech and action. Justice Louis D. Brandeis joined Holmes’s dissent. Gitlow remained a theoretical issue until the Court struck down a state law for violating free speech rights in Stromberg v. California (1931). Richard L. Wilson

Goldberg v. Kelly Citation: 397 U.S. 254 Date: March 23, 1970 Issue: Due process Relevant amendments: Fifth, Fourteenth Significance: The Supreme Court held that the due process clause of the Fourteenth Amendment requires that state agencies must provide welfare recipients with evidentiary hearings before ending their benefits. In conformity with state law, New York welfare officials terminated the public assistance of a recipient, with notice that the action could be challenged in a posttermination hearing. By a 5-4 vote, the Supreme Court held that a recipient must have the right to a pretermination hearing. Although not requiring the hearing to be a formal judicial proceeding, Justice William J. Brennan, Jr.’s majority opinion did specify that the recipient must be allowed to confront witnesses, to retain a lawyer, and to bring oral evidence before an impartial official. Brennan reasoned that a statutory entitlement to welfare was a form of property that helped poor people to survive and participate in the life of the community. In subsequent decisions, the Court expanded the Goldberg principle to related situations. In Gross v. Lopez (1975), for example, the Court held that suspension of students from public schools constituted deprivation of property within the meaning of the Fourteenth Amendment. In Mathews v. Eldridge (1976), however, the Court shifted toward a balancing test when it approved of a policy of not providing opportunity for a hearing for recipients of Social Security disability payments before termination of benefits. Thomas T. Lewis

492 / Gomillion v. Lightfoot

The Cases

Gomillion v. Lightfoot Citation: 364 U.S. 339 Date: November 14, 1960 Issue: Gerrymandering Relevant amendment: Fifteenth Significance: The Supreme Court struck down racial gerrymandering in Tuskegee, Alabama, opening the door for a reconsideration of the justiciability of redistricting cases. Justice Felix Frankfurter wrote the unanimous opinion of the Court overturning the arbitrary redrawing of the city limit lines in Tuskegee, Alabama, in such a way as to eliminate all but four or five African American voters while eliminating no white voters. In doing so, Frankfurter had to get around his own opinion in Colegrove v. Green (1946) in which he had concluded that legislative redistricting was a political question best left to the legislature. He did not drop his opposition to general judicial review of legislative districts, using the Fifteenth Amendment’s voting rights principle rather than the Fourteenth Amendment in his reasoning in Gomillion. He defended his Colegrove opinion in his dissent in Baker v. Carr (1962). Justices William O. Douglas and Charles E. Whittaker concurred but said they would have struck down the gerrymandering on Fourteenth Amendment grounds, foreshadowing the overturning of Colegrove by Baker. Richard L. Wilson

Good News Club v. Milford Central School Citation: No. 99-2036 Date: June 11, 2001 Issues: Equality for religious expression; Separation of church and state Relevant amendment: First Significance: The Supreme Court held that all public schools must open their doors for afterschool religious activities on the same basis that school policy permits other afterschool activities.

The Cases

Graham v. Richardson / 493

In an earlier decision, Lamb’s Chapel v. Center Moriches Union Free School District (1993), the Court had held that public high school property must be open to groups with religious messages so long as they could be used by other groups. Since the Lamb’s Chapel case had involved an adult activity during evening hours, the Court did not address whether the same analysis would apply to activities involving young children as soon as the school day ends. When a school district of upstate New York followed a policy of not allowing “quintessentially religious” subjects to be taught in elementary school buildings, an evangelical Christian organization for young boys and girls, the Good News Club, sued the school district in federal court. Reversing a ruling by the federal appeals court in Manhattan, the Supreme Court voted six to three to reaffirm that the expression of a religious viewpoint is protected by the First Amendment against discrimination on school property. Writing for the majority, Justice Clarence Thomas relied on the Court’s well-established neutrality principle, and he argued that the danger that children might misperceive an open-door policy as an endorsement of religion was no greater “that they might perceive a hostility toward the religious viewpoint if the club were excluded from the public forum.” With Justice Stephen G. Breyer writing an equivocal concurring opinion, five members of the Court appeared not to make any distinctions among religious speech, worship services, and recruitment activities. Thomas T. Lewis

Graham v. Richardson Citation: 403 U.S. 365 Date: June 14, 1971 Issue: Alien rights Relevant amendments: Fifth, Fourteenth Significance: In striking down an Arizona law requiring citizenship or long-term residency to receive welfare benefits, the Supreme Court increased protections for noncitizens residing in the United States. The Supreme Court unanimously struck down Arizona’s law requiring welfare beneficiaries to be either U.S. citizens or residents of the United States for a certain number of years. The Court classified aliens as a sus-

494 / Gregg v. Georgia

The Cases

pect category under the Fourteenth Amendment, which meant that laws affecting them as a group would be subject to strict scrutiny. The Court went beyond the equal protection clause of the Fourteenth Amendment to state that the Arizona law also interfered with the federal government’s right to establish rules for immigration and thus violated the supremacy clause in Article VI of the U.S. Constitution. Subsequent decisions suggested that the Court may not examine federal regulations as closely as state regulations, but they indicate that a refusal to provide essential benefits, such as Medicare, is likely to receive close scrutiny. Richard L. Wilson

Gregg v. Georgia Citation: 428 U.S. 153 Date: July 2, 1976 Issue: Capital punishment Relevant amendment: Eighth Significance: The Supreme Court held that the use of capital punishment, with proper procedures and safeguards, is not inconsistent with the requirements of the Eighth and Fourteenth Amendments. The Court ruled in Furman v. Georgia (1972) that capital punishment as commonly practiced in 1972 violated the U.S. Constitution. In response, thirty-five state legislatures and Congress revised their capital punishment statues in order to eliminate as much arbitrariness and unfairness as possible. The state of Georgia amended its statute to include three requirements: consideration of both aggravating and mitigating circumstances before a death sentence is rendered, a bifurcated trial for the separate determinations of guilt and punishment, and an automatic appeal to the state’s highest court to examine whether a sentence of death might have been imposed in an arbitrary or disproportionate manner. After Troy Leon Gregg was sentenced to death under the new law, his lawyers appealed the case to the Supreme Court. By a 7-2 vote, the Court upheld Georgia’s statute. Justice Potter Stewart’s plurality opinion argued that the use of the death penalty was not cruel and unusual in and of itself. Stewart emphasized American traditions and the intent of the constitutional Framers, and he noted that current public opinion was reflected in the capital punishment statues that

The Cases

Griffin v. California / 495

had been passed by the majority of the states. He insisted, moreover, that legislatures did not have the burden of proving that capital punishment was an effective deterrent and that retribution was neither a forbidden objective nor inconsistent with respect for human dignity. The two dissenters, Justices William J. Brennan, Jr., and Thurgood Marshall, insisted that capital punishment was inherently unconstitutional. Marshall wrote that capital punishment was not necessary as a deterrent to crime and that the public, if it were informed, would reject the practice as “morally unacceptable.” The same day the Court announced Gregg, it announced Woodson v. North Carolina (1976), which stuck down a state law requiring a mandatory death sentence for select crimes. Following the Gregg and Woodson holdings, the Court decided many issues regarding the circumstances in which capital punishment was permissible. By the late 1980’s the Court appeared to reflect public opinion as it increasingly took a pro-deathpenalty stance. In McCleskey v. Kemp (1987), for instance, the Court rejected a challenge to capital punishment based on evidence of disparate racial impact. In 1995 a record fifty-six people were executed and more than three thousand inmates were on death row. Thomas T. Lewis

Griffin v. California Citation: 380 U.S. 609 Date: April 28, 1965 Issue: Immunity against self-incrimination Relevant amendment: Fifth Significance: The Supreme Court held that prosecutors or judges cannot make negative comments about a defendant’s invoking the Fifth Amendment and that this protection against self-incrimination applies to the states under the due process clause. No one can stop a juror from drawing an inference regarding guilt or innocence from a defendant’s declining to take the stand in his or her own defense. However, the Supreme Court ruled that a negative comment regarding the defendant’s decision to remain silent, when made by the prosecutor or judge in front of the jury, tends to make the jurors disregard the defendant’s presumption of innocence. The Court, in a 7-2 deci-

496 / Griswold v. Connecticut

The Cases

sion that overruled Adamson v. California (1947), declared that the right against self-incrimination was a fundamental right protected by the due process clause of the Fourteenth Amendment and that even a mention of the defendant’s refusal to testify in a criminal case was an unconstitutional deprivation of the defendant’s rights. William O. Douglas wrote the opinion for the Court, with Potter Stewart and Byron R. White dissenting. Richard L. Wilson

Griswold v. Connecticut Citation: 381 U.S. 479 Date: June 5, 1965 Issues: Birth control and contraception; right to privacy Relevant amendments: First, Third, Fourth, Fifth, Ninth, Fourteenth Significance: The Supreme Court overturned a Connecticut statute that prohibited birth control, establishing the right to privacy. By a 7-2 vote, the Supreme Court overturned the convictions of two Connecticut citizens for providing birth control information to married couples. In the opinion for the Court for this landmark case, Justice William O. Douglas found a right to privacy as a penumbra that extended from other specific rights listed in the First, Third, Fourth, and Fifth Amendments and from an unenumerated right found in the Ninth Amendment. All were applied to the states under the Fourteenth Amendment. This case became the basis for the 1973 Roe v. Wade abortion decision. Justices Arthur J. Goldberg, Byron R. White, and John Marshall Harlan II concurred, and Justices Hugo L. Black and Potter Stewart dissented. Richard L. Wilson

Grosjean v. American Press Co. Citation: 297 U.S. 233 Date: February 10, 1936 Issue: Freedom of the press Relevant amendment: First

The Cases

Hague v. Congress of Industrial Organizations / 497

Significance: The Supreme Court held that a special tax on large newspapers was invalid because it abridged the freedom of the press guaranteed by the First and Fourteenth Amendments. When Louisiana’s largest newspapers were critical of Senator Huey Long, his supporters in the legislature imposed a special license tax on all newspapers with more than twenty thousand subscribers. The tax applied to only 13 of the 163 newspapers in the state, and 12 of the 13 had actively opposed Long’s policies. Speaking for a unanimous Court, Justice George Sutherland concluded that the tax was “a deliberate and calculated device” aimed at limiting the circulation of information about public affairs. Sutherland argued that “certain fundamental rights safeguarded in the first eight amendments” were applicable to the states through the Fourteenth Amendment and that the framers of the First Amendment had wanted to prevent all forms of prior restraint on either publication or circulation, including restraints through taxation. Sutherland’s opinion observed that newspapers were not immune from nondiscriminatory general taxation. The Court emphasized this principle in Minnesota Star and Tribune Co. v. Minnesota Commissioner of Revenue (1983). Thomas T. Lewis

Hague v. Congress of Industrial Organizations Citation: 307 U.S. 496 Date: June 5, 1939 Issues: Public forum doctrine; right of petition Relevant amendment: First Significance: The Supreme Court introduced the public forum doctrine, which required that streets, parks, and other public places must be accessible for public assembly and the discussion of public issues. A local ordinance of Jersey City, New Jersey, required a permit in order to hold public meetings or distribute literature in public areas. Mayor Frank Hague, an opponent of labor unions, had union members arrested for passing out pamphlets, and he refused to grant members the necessary

498 / Hammer v. Dagenhart

The Cases

permit for speaking on public property. By a 5-2 vote, the Supreme Court found that the city ordinance was unconstitutional. Speaking for a ruling plurality, Justice Owen J. Roberts defended the public forum doctrine in terms of the privileges, immunities, and liberties of citizens. Officials might regulate the use of public places in ways “consonant with peace and good order,” but not abridge or arbitrarily deny their use because of disagreement with the content of the ideas discussed. The Court explicitly incorporated the First Amendment’s freedom of petition into the due process clause of the Fourteenth Amendment, making it binding on state and local governments. Thomas T. Lewis

Hammer v. Dagenhart Citation: 247 U.S. 251 Date: June 3, 1918 Issue: Regulation of manufacturing Relevant amendment: Tenth

Child laborers in a typical New York City shoe factory during the early twentieth century. (Library of Congress)

The Cases

Harris v. McRae / 499

Significance: Striking down federal restrictions on child labor, the Supreme Court held that Congress could regulate only interstate commerce, not the manufacturing of goods destined for such commerce. Influenced by the Progressive movement, Congress in 1916 passed the Keating-Owen Child Labor Act, which banned from interstate commerce any goods made in a plant using child labor. By a 5-4 vote, the Supreme Court ruled that the statute was unconstitutional. Using the same reasoning as in United States v. E. C. Knight Co. (1895), Justice William R. Day based his opinion on a distinction between manufacturing and commerce, in combination with the doctrine of dual federalism. The states, under their police powers and the Tenth Amendment, possessed broad authority to regulate manufacturing, but the federal government, under the commerce clause, could only regulate those goods and services directly related to interstate commerce. In a spirited dissent, Justice Oliver Wendell Holmes accused the majority of reading their own economic prejudices into the Constitution, and he insisted that there was an adequate connection between manufacturing and commerce to justify the law. Despite a public outcry, the Court overturned a second child labor law in Bailey v. Drexel Furniture Co. (1922). The two decisions were finally overturned in United States v. Darby Lumber Co. (1941). Thomas T. Lewis

Harris v. McRae Citation: 448 U.S. 297 Date: June 30, 1980 Issue: Abortion Relevant amendment: Fifth Significance: The Supreme Court upheld the Hyde Amendment (1976) to the Medicaid program, which prohibited federal funding for abortions except where the woman’s life would be endangered or in cases of rape or incest. The Medicaid program, which began in 1965, provides the states with funds to help pay for the medical needs of poor people. When the Supreme Court struck down restrictive abortion laws in Roe v. Wade (1973),

500 / Harris v. New York

The Cases

the federal government at first allowed Medicaid funds to pay for abortion services. Most of this funding ended in 1976, when Congress enacted the Hyde Amendment. A 7-3 majority of the Court endorsed a portion of Hyde’s policy in Maher v. Roe (1977), approving a Connecticut welfare regulation that forbad payment for abortions not deemed “medically necessary.” Justice Lewis F. Powell, Jr., reasoned that the state had not placed any direct obstacles in the pregnant woman’s path to an abortion; therefore, it had not deprived her of the liberty guaranteed by the Fourteenth Amendment. Because no suspect classification or fundamental right was at issue, the Court applied the standard of rational scrutiny, concluding that the state had a “strong and legitimate interest in encouraging normal childbirth.” Soon after Maher, Norma McRae, a resident of New York, was denied assistance for an abortion deemed medically necessary. Because the denial was based on the Hyde Amendment, McRae claimed that the federal government was depriving her of a fundamental right guaranteed by the due process clause of the Fifth Amendment. By a 5-4 vote, the Court rejected her claim. Relying on the Maher precedent, Justice Potter Stewart wrote that the due process clause protects the liberty to make “certain private decisions” without “unwarranted governmental interference” but that it does not confer “an entitlement to such funds as might be necessary to realize all the advantages of that freedom.” The dissenters argued that the law unconstitutionally discriminated against poor women. The Court has reaffirmed the principles of Maher and Harris on many occasions. However, several state supreme courts have ruled that their state constitutions prohibit restrictions on abortions when state funds are used. Thomas T. Lewis

Harris v. New York Citation: 401 U.S. 222 Date: February 24, 1971 Issue: Miranda rights Relevant amendment: Fifth Significance: The Court held that confessions excluded because of an absence of Miranda warnings could be used to impeach the credibility of a criminal defendant who takes the stand to testify.

The Cases

Helvering v. Davis / 501

When Vivan Harris was arrested for selling heroin, he made incriminating statements before he was properly informed of his constitutional rights, as required by Miranda v. Arizona (1966). At trial, Harris testified in his own defense, and the prosecutor impeached his credibility by referring to his statements at the time of arrest. On appeal, his counsel argued that any reference to the improperly obtained evidence was invalid. By a 5-4 vote, however, the Supreme Court disagreed. Chief Justice Warren E. Burger’s opinion for the majority reasoned that the defendant had an obligation to speak truthfully on the witness stand and that the Miranda precedent did not provide a license to use perjury without any “risk of confrontation with prior inconsistent utterances.” The Harris decision was the first case in which the Court began to chip away at the Miranda ruling. It demonstrated that the majority of the justices regarded Miranda as a “prophylactic” device rather than as an integral part of the Fifth Amendment. Thomas T. Lewis

Helvering v. Davis Citation: 301 U.S. 619 Date: May 24, 1937 Issue: General welfare clause Relevant amendment: Tenth Significance: The Supreme Court affirmed the constitutionality of the Social Security Act of 1935. By a 7-2 vote, the Supreme Court upheld the old-age benefits provisions of the Social Security Act of 1935. Justice Benjamin N. Cardozo, in the opinion for the Court, adopted a broad view of the federal congressional power to tax and spend under Article I, section 8, of the U.S. Constitution. Cardozo rejected the argument that the Tenth Amendment traditionally held that taxing and spending on welfare was the province of the states, not the federal government. He noted that the Social Security Act was, in part, a response to a national calamity to which Congress surely had the power to respond. Richard L. Wilson

502 / Holden v. Hardy

The Cases

Holden v. Hardy Citation: 169 U.S. 366 Date: February 28, 1898 Issues: Regulation of business; freedom of contract Relevant amendments: Fifth, Fourteenth Significance: In an age of laissez-faire constitutionalism, the Supreme Court recognized that a state, under its police power, could place some restrictions on freedom of contract. During the 1890’s Albert Holden was convicted of violating a Utah statute that had established the eight-hour workday in mines and smelters. In appealing his conviction, Holden argued that the law deprived both employees and employers of their constitutionally protected liberty to enter into contracts. Only one year earlier, in Allgeyer v. Louisiana (1897), the Supreme Court had overturned a state law that had been found to violate this unenumerated right, which was based on a substantive reading of the due process clause of the Fourteenth Amendment. In the Holden case, however, the Court voted six to two to uphold the Utah law. Justice Henry B. Brown explained that the freedom of contract was subject to limitation by the state’s police power, which authorized the state to protect the safety, health, and morals of the public. While accepting the need for regulations in dangerous occupations such as mining, Brown’s opinion suggested that the Court in the future would require a strong rationale for all governmental restrictions on the freedom of contract. The significance of Brown’s reasoning would become much clearer when the Court overIn Holden v. Hardy, Justice Henry B. Brown turned a maximum-hour law explained that the freedom of contract was subject to limitation by the state’s police power. in Lochner v. New York (1905). (Library of Congress) Thomas T. Lewis

The Cases

Hurley v. Irish-American Gay, Lesbian, and Bisexual Group / 503

Hudson v. Palmer Citation: 468 U.S. 517 Date: July 3, 1983 Issues: Right to privacy; search and seizure Relevant amendment: Fourth Significance: The Supreme Court held that prison inmates lack the rights to privacy and protection against searches under the Fourth Amendment. Palmer, a Virginia inmate, claimed prison officer Hudson conducted an improper search of his locker and cell, during which he destroyed some of Palmer’s personal property and generally harassed him unnecessarily. The officer discovered a ripped pillow case and charged him with destroying state property. By a 5-4 vote, the Supreme Court determined that incarcerated convicts do not have a right to privacy or Fourth Amendment protection against “unreasonable searches and seizure.” In the opinion for the Court, Chief Justice Warren E. Burger used Katz v. United States (1967) to dismiss Palmer’s claim to a privacy right and protection against unreasonable searches and seizures and used Parratt v. Taylor (1981) to reaffirm that an inmate had no due process claim against negligent loss of property if the state provided a reasonable remedy for the loss. Justice Sandra Day O’Connor concurred on different grounds. Justice John Paul Stevens, William J. Brennan, Jr., Thurgood Marshall, and Harry A. Blackmun concurred in part and dissented in part. Richard L. Wilson

Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston Citation: 515 U.S. 557 Date: June 19, 1995 Issue: Symbolic speech Relevant amendment: First Significance: The Supreme Court held that the organizers of a Saint Patrick’s Day parade did not have to include a gay group and that Massa-

504 / Hurtado v. California

The Cases

chusetts violated the parade organizer’s First Amendment right by forcing it to allow the gay group to march. Justice David H. Souter wrote the unanimous decision of the Supreme Court, holding that a private group that organized a parade did not have to include groups whose message changed the character of the parade. For the state of Massachusetts to require the veteran’s group organizers of the Saint Patrick’s Day parade to include the Irish Gay, Lesbian, and Bisexual Group of Boston would be to violate the First Amendment rights of the organizers. Souter found that one important characteristic of freedom of speech is that a speaker may decide what not to say. In this case, the parade was an expressive event—symbolic speech—and Massachusetts was forcing the veterans to say something they did not want to say when the state insisted that the gay group be included. Richard L. Wilson

Hurtado v. California Citation: 110 U.S. 516 Date: March 3, 1884 Issue: Incorporation doctrine Relevant amendment: Fifth Significance: Ruling that the Fifth Amendment requirement for a grand jury indictment is not binding on the states, the Supreme Court interpreted the due process clause of the Fourteenth Amendment as a requirement for “fundamental principles of liberty and justice.” Joseph Hurtado was found guilty of murder and sentenced to death. In conformity with the California state constitution, he was never indicted by a grand jury, but his trial was initiated by the prosecutor’s filing a statement of information. Appealing the conviction, Hurtado argued that the lack of a grand jury violated the procedural requirements of the Fifth Amendment as well as the common law. By a 7-1 vote, the Supreme Court rejected Hurtado’s argument. Justice Stanley Matthews assumed that the meaning of “due process” was the same in the Fifth and Fourteenth Amendments. Then using an interpretative rule that regards no words of the Constitution to be superfluous, Matthews concluded that the due process in the Fifth Amendment could

The Cases

Hustler Magazine v. Falwell / 505

In his opinion in the Hurtado case, Justice Stanley Matthews assumed that the meaning of “due process” was the same in the Fifth and Fourteenth Amendments. (Collection of the Supreme Court of the United States)

not logically refer to the same procedures mentioned in the amendment. Due process, in the majority’s view, was a flexible requirement for fairness in trials. In dissent, John Marshall Harlan II argued for the full incorporation of the Bill of Rights. Later courts have rejected the nonsuperfluous rule, but the main holding in Hurtado remains good law. Thomas T. Lewis

Hustler Magazine v. Falwell Citation: 485 U.S. 46 Date: February 24, 1988 Issue: Libel Relevant amendment: First Significance: The Supreme Court ruled against a religious leader’s libel claim, providing a right of parody for the press. Publisher Larry Flynt’s Hustler magazine printed an issue containing a parody of Jerry Falwell, in which the conservative religious leader was depicted having sex with his mother in an outhouse. A Virginia federal district court jury rejected Falwell’s libel claim because it believed that no reasonable person would believe the parody was truthful but awarded Falwell $200,000 for “intentional infliction of emotional distress”—a rul-

506 / Illinois ex rel. McCollum v. Board of Education

The Cases

ing that did not require that a false statement was made. By an 8-0 vote, the Supreme Court overturned the lower court’s decision. In the opinion for the Court, Chief Justice William H. Rehnquist wrote that a public figure could not recover for intentional infliction of emotional harm absent a libelous statement made with actual malice. Public figures such as Falwell must expect robust criticism because the press protection under the First Amendment takes precedence over their emotional loss from nonlibelous statements. Richard L. Wilson

Illinois ex rel. McCollum v. Board of Education Citation: 333 U.S. 203 Date: March 8, 1948 Issue: Establishment of religion Relevant amendment: First Significance: The Supreme Court disallowed a released-time religious instruction program in public schools, helping define the meaning of the First Amendment’s establishment of religion clause. By an 8-1 vote, the Supreme Court found unconstitutional a releasedtime religious education program in the Illinois public schools. Under the Illinois program, Protestant, Roman Catholic, and Jewish instructors—not paid with public funds but approved by the superintendent of schools—came into the schools to teach thirty- to forty-five-minute religious training programs and kept records of those attending. Any student not wishing to participate could participate in supervised alternative activities elsewhere in the building. In his opinion for the Court, Justice Hugo L. Black found the use of the school buildings to be excessive public support for religion under his earlier opinion in Everson v. Board of Education of Ewing Township (1947). Justice Felix Frankfurter concurred in an opinion joined by four other justices that argued there was a historical record against intermixing religious and secular activities in the United States. The separationist views that dominated this case were modified by Zorach v. Clauson (1952). Justice Stanley F. Reed dissented, arguing that the establishment of religion clause should be treated more narrowly to

The Cases

Illinois v. Wardlow / 507

allow the state’s incidental support of religion, a position close to the one taken by Justice Potter Stewart in later cases. Richard L. Wilson

Illinois v. Wardlow Citation: 120 S.Ct. 673 Date: January 12, 2000 Issue: Reasonable suspicion under the stop and frisk rule Relevant amendment: Fourth Significance: Expanding on Terry v. Ohio (1968), the Supreme Court held that an unprovoked flight from police officers in a high crime area provides the reasonable suspicion necessary for the officers to pursue, stop, and frisk the person who flees. William Wardlow, holding an opaque container, was standing on a street corner in a Chicago neighborhood known for a high incidence of trafficking in illegal drugs. When a caravan of four police cars arrived, Wardlow immediately took flight. Two officers pursued and caught the young man. Knowing that drug dealers of the area were often armed, they conducted a protective pat-down search for weapons. When they discovered a handgun, they arrested Wardlow, who was subsequently prosecuted and found guilty of illegally carrying a weapon. Illinois’s supreme court, citing the fear that residents in many Chicago neighborhoods had of the police, held that the defendant’s unprovoked flight did not provide a constitutional justification for officers to pursue and stop him. The U.S. Supreme Court, however, reversed the state court’s ruling by a 6-3 margin. Writing for the majority, Chief Justice William Rehnquist argued that the officers, based on the totality of circumstances, had acted on the basis of a “reasonable suspicion” of criminal activity, following the Court’s requirements in the long series of Terry-like cases. The concept of “reasonable suspicion,” he explained, was not a question of scientific certainty, but it was based on “common-sense judgment.” While recognizing that the police must be able to articulate a reasonable justification for stopping a person, Rehnquist emphasized that the Constitution did not prohibit the police from taking into account the criminal statistics of the area in which the behavior occurred. Thomas T. Lewis

508 / Jacobellis v. Ohio

The Cases

Jacobellis v. Ohio Citation: 378 U.S. 528 Date: June 22, 1964 Issue: Obscenity Relevant amendment: First Significance: The Supreme Court ruled that a French film was not obscene and could not be banned but was divided as to its reasoning. Justice William J. Brennan, Jr., wrote the opinion for the 5-3 majority, which held that a particular French film was not obscene by national standards and could not be banned—obscene or not—without violating freedom of expression. In his opinion, Brennan stated that the “community standards” used to determine obscenity were those of “society at large.” In addition, to be obscene, material must be “utterly without redeeming social importance.” Although Brennan wrote the majority opinion, all eight justices wrote either concurring or dissenting opinions. Justice Brennan and Justices Potter Stewart and Arthur J. Goldberg determined that the film was not obscene. In his opinion, Justice Stewart said he found it difficult to define obscenity; however, he stated, “I know it when I see it.” Justices Hugo L. Black and William O. Douglas had no opinion on whether the film was obscene or not; however, they found that it would violate the First Amendment to ban the film regardless of the question of obscenity. Chief Justice Earl Warren and Justices Tom C. Clark and John Marshall Harlan II dissented, finding the film obscene. Justice Byron R. White did not participate in the decision. Richard L. Wilson

Jacobson v. Massachusetts Citation: 197 U.S. 11 Date: February 20, 1905 Issue: The “spirit” of the Constitution Relevant amendments: Fifth, Ninth, Fourteenth Significance: The Supreme Court limited people’s ability to make general claims that their rights were protected by the “spirit” of the Constitution’s preamble or body.

The Cases

Johnson v. Louisiana / 509

Henning Jacobson refused to submit to a smallpox vaccination pursuant to a duly passed Massachusetts state law and Cambridge city ordinance and was fined five dollars. At trial, Jacobson insisted that the “spirit” of the Constitution’s preamble and the wording of the Fourteenth Amendment meant he did not have to submit to vaccination. He further attempted to assert that there might be unfavorable health consequences to vaccination, the risk of which he should not be required to endure. By a 7-2 vote, the Supreme Court rejected Jacobson’s claim that he could use the “spirit” of the Constitution’s preamble or the “spirit” of the body of the Constitution to assert rights, noting that the specific words of the document were all that could be used to invalidate a state statute. In the opinion for the Court, Justice John Marshall Harlan noted that Jacobson could not show specific harm was likely to follow from his being vaccinated. The Court further asserted that a state did not have to show that every vaccination would be a complete success in order to impose on its citizens a medical procedure that had been shown to be more helpful than harmful to the vast majority of population in a situation involving a disease that was potentially epidemic. Justices David J. Brewer and Rufus W. Peckham dissented. Richard L. Wilson

Johnson v. Louisiana Citation: 400 U.S. 356 Date: January 10, 1972 Issue: Nonunanimous juries Relevant amendments: Sixth, Fourteenth Significance: The Supreme Court held that convictions based on nonunanimous jury verdicts in state criminal trials do not violate the due process clause of the Fourteenth Amendment. In the common-law tradition, criminal convictions were based on the unanimous agreement of twelve-member juries. In 1968 the Supreme Court required states to provide jury trials in criminal cases, but it did not specify whether all of the common-law requirements were applicable to the states. In Williams v. Florida (1970), the Court approved the use of sixperson juries in noncapital state trials. The state of Louisiana had a statute that allowed convictions based on nine jurors out of twelve in non-

510 / Johnson v. Santa Clara County

The Cases

capital cases. Oregon had a similar law. The Court considered the constitutionality of the Louisiana law in the Johnson case, and it reviewed the Oregon law in the companion case of Apodaca v. Oregon (1972). By a 5-4 vote, a divided Court surprised many observers when it departed from the unanimity rule. In a plurality opinion, Justice Byron R. White argued that nine out of twelve votes was a “substantial majority” and that the “disagreement of three jurors does not alone establish reasonable doubt.” Justice Lewis F. Powell, Jr., joined the majority ruling in regard to state trials, but he argued in a concurring opinion that the Sixth Amendment, based on history and precedent, required a unanimous jury in federal trials. The four dissenters insisted that the same standards should apply to federal and state trials and that a nonunanimous verdict was inconsistent with the “beyond a reasonable doubt” standard. The Johnson and Apodaca decisions, in view of Williams, left observers wondering about the relationship between jury size and the unanimity principle. The Court met that issue in Burch v. Louisiana (1979), requiring that unanimous verdicts are required in six-member juries. Thomas T. Lewis

Johnson v. Santa Clara County Citation: 480 U.S. 616 Date: March 25, 1987 Issue: Affirmative action Relevant amendments: Fifth, Fourteenth Significance: The Supreme Court rejected a reverse discrimination claim in which a female employee was promoted over a white male employee who was judged slightly more qualified. In United Steelworkers of America v. Weber (1979), the Supreme Court ruled that Title VII of the Civil Rights Law of 1964 did not prohibit raceconscious affirmative action to eliminate racial imbalance in traditionally segregated job categories. In 1978 the Transportation Agency of Santa Clara County adopted a voluntary plan to address gender and racial disparity in job classifications. Although women made up 76 percent of the agency’s office and clerical staff, there were no women among its skilled craft workers. In a competition for promotion to road dispatcher, both Diane Joyce and Paul Johnson were rated as well qualified, but Johnson

The Cases

Johnson v. Zerbst / 511

had slightly higher scores on the exams. When Joyce was promoted, Johnson sued for gender discrimination under Title VII. The Court rejected Johnson’s claim by a 6-3 vote. Speaking for the majority, Justice William J. Brennan, Jr., using the reasoning in the Weber precedent, held that a limited gender preference was an appropriate means to remedy the imbalance between men and women in skilled job classifications. Brennan emphasized three points: First, Santa Clara’s plan used flexible goals rather than rigid quotas; second, gender was only one factor in the promotion choice; and third, men were not completely barred from future promotions in the agency. The decision was based on Title VII rather than the Fourteenth Amendment; therefore, there was no need to discuss the standards of strict or intermediate scrutiny. In a spirited dissent, Justice Antonin Scalia argued that Title VII’s purpose was to guarantee that race and sex would not be the basis for employment determinations. In the 1990’s there was a strong movement against the continuing use of gender and race preferences in employment. In 1997 the Court refused to consider a challenge to California’s constitutional amendment prohibiting such preferences. Nevertheless, the Johnson decision continued to be good law except in states with constitutional prohibitions against preferences. Thomas T. Lewis

Johnson v. Zerbst Citation: 304 U.S. 458 Date: May 23, 1938 Issue: Indigent criminal defendants Relevant amendment: Sixth Significance: The Supreme Court held that indigent defendants have a constitutional right to be represented by counsel in federal criminal proceedings. In examining an appeal of a person convicted of counterfeiting, the Supreme Court ruled, by a 6-2 margin, that the Sixth Amendment prohibits the federal government from depriving any person of life or liberty unless the person has or waives the assistance of counsel. In the case of an indigent defendant, therefore, the federal government has the obligation

512 / Kansas v. Hendricks

The Cases

of appointing and paying for a competent attorney. The Johnson requirement was later extended to state criminal proceedings in Gideon v. Wainwright (1963) and Argersinger v. Hamlin (1972). Thomas T. Lewis

Kansas v. Hendricks Citation: 117 S.Ct. 2072 Date: June 23, 1997 Issues: Ex post facto laws; double jeopardy Relevant amendments: Fifth, Fourteenth Significance: The Supreme Court held that violent sexual predator legislation did not violate the Fourteenth Amendment’s substantive due process clause nor did it trigger criminal protections, such as those against ex post facto laws and double jeopardy. At issue was whether the Kansas violent sexual predator legislation was in effect criminal legislation that violated Gregory L. Hendricks’s rights by imposing double jeopardy or ex post facto punishments. If the legislation was purely civil, then the question was whether the statute violated the substantive due process protections of the Fourteenth Amendment. By a 5-4 vote, the Supreme Court found that the legislation was not criminal and, therefore, the Court did not need to rule on the double jeopardy or ex post facto questions. The Court found that the statute was permissible under the Fourteenth Amendment. All justices conceded that Hendricks was a violent sexual predator with a record of multiple cases of child molestation Richard L. Wilson

Kastigar v. United States Citation: 406 U.S. 441 Date: May 22, 1972 Issue: Immunity against self-incrimination Relevant amendment: Fifth

The Cases

Katz v. United States / 513

Significance: The Supreme Court upheld grants of use immunity as well as of transactional immunity as falling within the Fifth Amendment protection against self-incrimination. By a 5-2 vote, the Supreme Court upheld a 1970 congressional enactment requiring witnesses to testify before grand juries under use immunity grants. Use immunity means the government cannot use any testimony or information obtained from testimony against the person granted immunity in any subsequent prosecution. Transactional immunity offers more protection because it covers any offenses related to testimony. Kastigar based his challenge on the idea that the protection against selfincrimination in the Fifth Amendment required at minimum transactional immunity, but the Court held that use immunity was sufficient. By upholding use immunity, the Court strengthened the hand of prosecutors. Subsequently, grants of use immunity for grand jury testimony increased dramatically. Richard L. Wilson

Katz v. United States Citation: 389 U.S. 347 Date: December 18, 1967 Issue: Search and seizure Relevant amendment: Fourth Significance: The Supreme Court overturned an earlier decision, thereby increasing the protection of those accused of committing crimes from improperly gathered electronic surveillance. The police attached an electronic listening device to the outside of a public phone booth frequently used by a suspected bookmaker named Katz. The conversations overheard by the officers were used in the bookmaker’s trial. Katz argued that the listening devices violated his Fourth Amendment protection against illegal searches. The Supreme Court decided in favor of Katz, ruling that the Fourth Amendment protects people, not places such as their homes. It also found that what people knowingly make public is not protected even if they are at home, but what people seek to keep private, even if they are in a public area, may be constitutionally protected.

514 / Katzenbach v. Morgan

The Cases Justice Potter Stewart’s majority opinion in Katz helped expand Fourth Amendment protections. (Collection of the Supreme Court of the United States)

Justice Potter Stewart wrote the opinion for the 7-1 majority that overturned Olmstead v. United States (1928), which exempted electronic surveillance from the Fourth Amendment protection against illegal searches. Olmstead had focused on physical intrusion and therefore did not protect telephone conversations in a public phone booth, but Katz protected individuals more fully. In subsequent cases, the strong protection of Katz has been modified somewhat. Richard L. Wilson

Katzenbach v. Morgan Citation: 384 U.S. 641 Date: June 13, 1966 Issue: Right to vote Relevant amendment: Tenth Significance: The Supreme Court recognized the right of Congress to enforce its own interpretation of Fourteenth Amendment rights.

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Kent v. Dulles / 515

A New York statute required passage of an English literacy test in order to register to vote. In Lassiter v. Northampton County Board of Elections (1959), the Court had held that such literacy requirements did not violate the Fourteenth Amendment. New York’s attorney general argued that Congress could not invoke the enforcement provision of the Fourteenth Amendment to prohibit implementation of a state law when that law had not been judged unconstitutional by the judicial branch. However, by a 7-2 vote, the Court upheld a provision of the Voting Rights Act of 1965, providing that no person who had completed the sixth grade in an accredited Puerto Rican school could be denied the right to vote because of an inability to read or write English. Speaking for the majority, Justice William J. Brennan, Jr., argued that the framers of the Fourteenth Amendment intended section 5 to give Congress broad powers to enforce the rights enumerated in the amendment. Brennan wrote, moreover, that Congress had the prerogative of interpreting the U.S. Constitution in ways that expanded on the rights that were recognized by the courts. Justice John Marshall Harlan II’s dissent warned that if Congress could expand on the Court’s interpretations of constitutional rights, it could logically also restrict some guarantees. Most commentators have concluded that the majority of the justices rejected Brennan’s expansive view of congressional prerogatives in Oregon v. Mitchell (1970). Thomas T. Lewis

Kent v. Dulles Citation: 357 U.S. 116 Date: June 16, 1958 Issue: Right to travel Relevant amendment: Fifth Significance: The Supreme Court ruled that the right to travel was part of the liberty guaranteed by the due process clause of the Fifth Amendment and that Congress had not authorized the secretary of state to deny passports because of beliefs or political affiliations. In 1948 the Department of State established a policy of not issuing passports to communists, communist sympathizers, or individuals considered security risks. When Rockwell Kent was denied a passport, he argued that

516 / Keystone Bituminous Coal Association v. DeBenedictis

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the policy was unconstitutional. Speaking for a 5-4 majority, Justice William O. Douglas held that the Immigration and Nationality Act of 1952 did not authorize the secretary of state to withhold passports from citizens because of their beliefs or political activities. Douglas reasoned that the right to domestic and international travel was a constitutional right; therefore, the Court would have to assume that Congress would not have attempted to curtail the right without an explicit statute. In order to get Justice Felix Frankfurter to join the majority, Douglas did not consider the constitutional powers of Congress to restrict travel. As a result of the decision, nevertheless, passport application forms ceased to ask questions about Communist Party membership. Expanding on Kent, the Court limited the authority of Congress to restrict travel in Aptheker v. Secretary of State (1964). Thomas T. Lewis

Keystone Bituminous Coal Association v. DeBenedictis Citation: 480 U.S. 470 Date: March 9, 1987 Issues: Takings clause; contracts clause Relevant amendment: Fifth Significance: The Supreme Court held that a Pennsylvania law prohibiting underground mining that causes damage to surface structures does not violate either the takings clause or the contracts clause. In 1966 the Pennsylvania legislature enacted a law prohibiting coal mining that caused subsidence damage to preexisting public buildings, dwellings, and cemeteries. Based on Pennsylvania Coal Co. v. Mahon (1922), the Keystone Bituminous Coal Association argued that it should be paid compensation for its inability to mine coal in certain places. The company also alleged that the law prevented the enforcement of its existing contracts that waived liability for surface damage. Speaking for a 5-4 majority, Justice John Paul Stevens reasoned that a state could exercise its police power to protect the public’s safety and welfare and that no Fifth Amendment taking occurs when landowners are not deprived of all economic use of their property. Observing that the

The Cases

Klopfer v. North Carolina / 517

statute deprived the company of less than 2 percent of its coal, Stevens found that Court precedents did not allow the company to divide property parcels into component parts when deciding whether the government was required to pay compensation. In regard to the contracts clause challenge, Stevens found that established precedents allowed contractual impairments judged reasonable and necessary for achieving important public purposes. “It is well-settled,” he wrote, “that the prohibition against impairing the obligation of contracts is not to be read literally.” Thomas T. Lewis

Klopfer v. North Carolina Citation: 386 U.S. 213 Date: March 13, 1967 Issue: Right to a speedy trial Relevant amendment: Sixth Significance: The Supreme Court applied the Sixth Amendment’s promise of a speedy trial to the states through the Fourteenth Amendment’s due process clause under the incorporation doctrine. Klopfer had been indicted by North Carolina for criminal trespass for taking part in a sit-in demonstration in a restaurant. At Klopfer’s trial, the jury failed to reach an agreement, and the judge declared a mistrial. This meant the state could retry Klopfer, but the state prosecutor elected to persuade a court to delay the trial indefinitely. Klopfer sued and appealed in all relevant North Carolina courts without success. Finally he appealed to the Supreme Court, which ruled against North Carolina. The 6-3 majority opinion, written by Chief Justice Earl Warren, stated the uncertainty and delay that inevitably resulted from the state’s procedure had deprived Klopfer of his liberty without due process of law. The Court also used the incorporation doctrine to apply the Sixth Amendment guarantee of speedy trial to the states. Justices John Marshall Harlan II and Potter Stewart dissented. In later cases, the Court often used a balancing test that generally favors the prosecution, as it did in Barker v. Wingo (1972). Richard L. Wilson

518 / Korematsu v. United States

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Korematsu v. United States Citation: 323 U.S. 14 Date: December 18, 1944 Issues: Due process of law; equal protection; war powers Relevant amendment: Fifth Significance: Based on the argument of military necessity, the Supreme Court upheld the exclusion of persons of Japanese ancestry from the West Coast and the requirement that they report to assembly centers, which almost always resulted in assignment to internment camps. After the United States entered into a war with Japan, President Franklin D. Roosevelt issued executive orders authorizing a military program that removed persons of Japanese descent from the West Coast and resettled them in internment centers. Congress enacted a statue that implemented the executive orders. In Hirabayashi v. United States (1943), the Court unanimously upheld the military’s curfew that applied almost exclusively to persons of Japanese ethnicity, but the Court refused to even consider the more fundamental issues of exclusion and resettlement. Fred Korematsu was a Japanese American who tried to evade the evacuation program in order to live and work in California. After he was discovered, he was prosecuted for two crimes: remaining in the restricted area and not reporting to an assembly center for assignment under the program. He was sentenced to five years in prison but was paroled and sent to an internment camp in Utah. Korematsu claimed that his conviction violated the due process clause of the Fifth Amendment. By a 6-3 vote, the Supreme Court rejected Korematsu’s claim. Writing for the majority, Justice Hugo L. Black accepted the military’s argument that the presence of Japanese Americans on the West Coast presented a danger to the national security, and he insisted that their “temporary exclusion” was based on military necessity rather than any racial hostility. Although Black accepted the exclusion program without any solid evidence of sabotage or espionage, he nevertheless wrote that “all legal restrictions that curtail the rights of a single racial group are immediately suspect” and must be given “the most rigid scrutiny.” Ironically, this statement helped establish the Court’s use of the strict scrutiny test in cases involving racial restrictions. Because Korematsu was not convicted under the internment portion of the program, Black avoided any consideration

The Cases

Korematsu v. United States / 519

Japanese American residents of San Pedro, California, board a train to the Manzanar relocation center in the eastern Sierras. (National Japanese American Historical Society)

of internment, and he examined only the constitutionality of the exclusion and reporting requirements. The three dissenters emphasized the issue of racial discrimination and worried about future applications of the Korematsu precedent. Justice Frank Murphy wrote an especially strong dissent challenging “this legalization of racism” and insisted that investigations of Japanese Americans should have been conducted “on an individual basis” as had been done in cases involving persons of German and Italian ancestry. In Ex parte Endo, announced the same day as Korematsu, the Court narrowly ruled that the War Relocation Authority must release any person whose loyalty to the United States had been clearly established. Because of the difficult burden of proof requirements in the Endo decision, this did not help Korematsu and most other Japanese Americans. In the 1980’s lawyer Peter Irons discovered that the military had concealed evidence about Korematsu and others from the courts, and their convictions were overturned. Thomas T. Lewis

520 / Kunz v. New York

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Kunz v. New York Citation: 340 U.S. 290 Date: January 15, 1951 Issue: Freedom of speech Relevant amendment: First Significance: The Supreme Court held that government statutes regulating speech must be narrowly drawn so that they do not unduly restrict freedom of expression. Carl Kunz was a Baptist minister convicted of preaching on the New York City streets without a permit. Kunz, who had been accused of “scurrilous attacks on other religions” during earlier street preaching incidents, was denied a permit even though the ordinance contained no standards for determining the criteria for denying a permit. The Supreme Court judged the New York ordinance to be vague and overbroad, both constitutional defects, and reversed Kunz’s conviction. The Court found that the New York ordinance, which gave officials the authority to prevent people from speaking, constituted an unacceptable prior restraint on speech, in violation of the First Amendment. Chief Justice Fred M. Vinson wrote the opinion for the 8-1 majority, with Justices Hugo L. Black and Felix Frankfurter concurring in the result only. Justice Robert Jackson dissented, stating the majority had missed the point of the case entirely because the facts indicated that the defendant had used profanity or “fighting words,” which were not entitled to free speech protection. Richard L. Wilson

Kyllo v. United States Citation: No. 99-8508 Date: June 11, 2001 Issue: External searches of homes with high-tech equipment Relevant amendment: Fourth Significance: In limiting the use of privacy-threatening technology, the Supreme Court held that police much have search warrants in order to use thermal imagers to detect patterns of heat coming from private homes.

The Cases

Lanza, United States v. / 521

In 1992, federal agents aimed a sensitive heat detector at Danny Kyllo’s home in Florence, Oregon. The agents acted on the basis of tips and utility bills suggesting the possibility that Kyllo might be growing marijuana under high-intensity lamps. After the instrument registered suspiciouslooking hot spots, the agents obtained a warrant to enter and search the home, where they discovered more than one hundred marijuana plants growing under lamps. Although Kyllo agreed to plead guilty to a misdemeanor charge carrying a sentence of one month in jail, he contested the validity of the search. By a 5-4 margin, the U.S. Supreme court agreed with Kyllo’s contention that the warrantless use of the thermal imager violated Kyllo’s “reasonable expectation of privacy.” Writing the opinion for the Court, Justice Antonin Scalia argued that the most fundamental purpose of the Fourth Amendment was to keep private homes “safe from prying government eyes,” and he emphasized the importance of not “leaving the homeowner at the mercy of advancing technology.” In a surprising dissent, Justice John Paul Stevens, who was often called the Court’s most liberal justice, wrote that the use of the device outside the home “did not invade any constitutionally protected interest in privacy.” The Kyllo ruling highlighted the unpredictable nature of the Court’s line drawing when applying Fourth Amendment principles. The previous year, in Bond v. United States, a 7-2 majority of Court had found that the police had engaged in an unconstitutional search when they walked down the aisle of a bus and squeezed the passenger’s luggage to look for contraband. In Bond, Stevens had voted with the majority, while Scalia had dissented. Thomas T. Lewis

Lanza, United States v. Citation: 260 U.S. 377 Date: December 11, 1922 Issue: Double jeopardy Relevant amendment: Fifth Significance: The Supreme Court, in allowing a bootlegger to be tried in both state and federal court, restricted the protection against double jeopardy.

522 / Legal Tender Cases

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The Supreme Court unanimously upheld the second indictment of a bootlegger who was tried first in state court for violating the Washington state prohibition law and then charged in federal court for violating the 1919 Volstead Act, using the same evidence. A federal district court blocked trial on the federal charges, but the Supreme Court overturned its decision, arguing that the two levels acted independently of each other. Although Lanza remains valid law, this practice has been criticized as the kind of double jeopardy presumably prohibited by the Fifth Amendment. Richard L. Wilson

Legal Tender Cases Citations: 75 U.S. 603; 79 U.S. 457 Date: February 7, 1870; May 1, 1871 Issues: Freedom of contract; fiscal and monetary powers Relevant amendment: Fifth Significance: With its decisions in these three cases, the Supreme Court clearly established the right of the U.S. government to pay its debts in paper money. After a long tradition of rejecting the use of paper money as legal tender, the United States—including former secretary of the treasury and later chief justice Salmon P. Chase—found it necessary to use paper money temporarily during the Civil War. The Legal Tender Act of 1862 meant the paper money, called “greenbacks,” had to be accepted in payment of debt, or debts could be forfeited. However, the paper currency depreciated compared with gold coins. In Hepburn v. Griswold, the Supreme Court, by a 4-3 vote, overturned the 1862 statute. Chase, who wrote the opinion for the Court, attempted with his decision to return to the earlier sound money era by holding that congressional enactment of the 1862 act violated the Fifth Amendment’s due process clause as a taking and also violated the “spirit” of the contract clause. This case was heard by less than a full Court as the result of the machinations surrounding the Civil War and its aftermath. After President Ulysses S. Grant was given an opportunity to appoint two members to the Court, the case was reheard. In Parker v. Davis and Knox v. Lee, decided a year later by a 5-4 vote, the Court reversed the Hep-

The Cases

Lemon v. Kurtzman / 523

As a former secretary of the U.S. Treasury, Chief Justice Salmon Chase had strong views on the matter of paper currency. (Collection of the Supreme Court of the United States)

burn decision. Justice William Strong wrote the majority opinion with Justices Chase, Nathan Clifford, and Stephen J. Field dissenting. Important practical realities—and the principle of avoiding retroactive changes in obligations—led Justice Strong to write a decision that upheld congressional control of the currency as a legitimate implied power under the Constitution. Congressional power was upheld but the Court’s prestige suffered. Richard L. Wilson

Lemon v. Kurtzman Citation: 403 U.S. 602 Date: June 28, 1971 Issue: Separation of church and state Relevant amendment: First Significance: While vetoing state subsidies for teachers of parochial schools, the Supreme Court established a three-part Lemon test for evaluating whether governmental programs ran afoul of the establishment clause of the First Amendment.

524 / Leon, United States v.

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In 1968 the Pennsylvania legislature enacted a statute allowing direct salary supplements for teachers of secular subjects in private schools. Alton Lemon, supported by the American Civil Liberties Union, brought suit against David Kurtzman, state superintendent of schools. The Supreme Court consolidated this case with a similar one from Rhode Island, and it ruled, by a 7-0 vote, that both state laws were unconstitutional. Chief Justice Warren E. Burger’s opinion for the majority was of later importance because of its three-part test known as the Lemon test: First, a statute must have a secular legislative purpose; second, its primary effect must not be to either advance or inhibit religion; and third, it must not promote “an excessive government entanglement with religion.” Burger noted that the teachers at religious schools, many of whom were nuns, would find it impossible to make a clear distinction between religious and nonreligious instruction. Government grants, moreover, would require surveillance and controls, which would involve a great deal of entanglement between state and religion. The Lemon test, in its application, is susceptible to a great deal of interpretation, depending on whether the particular justice desires “accommodation” or a “high wall of separation” between church and state. Applying the test often split the justices into 5-4 votes. Although often criticized, the Lemon test has endured because a majority of the justices have been unable to coalesce behind an alternative standard. In Agostini v. Felton (1997), Justice Sandra Day O’Connor cited the Lemon test as good law, but she endorsed an accommodationist view of the first part of the test. Thomas T. Lewis

Leon, United States v. Citation: 468 U.S. 897 Date: July 5, 1984 Issue: Good faith exception Relevant amendment: Fourth Significance: The Supreme Court ruled that the Fourth Amendment did not prohibit the admission of criminal evidence obtained from a search conducted pursuant to a warrant issued by a neutral and detached magistrate even if the warrant was ultimately found invalid through no fault of the police officers conducting the search.

The Cases

Lochner v. New York / 525

Based on an affidavit referring to a confidential informant and various police observations, a state judge issued a search warrant authorizing police officers to search the residences of Alberto Leon and two other suspects. In the ensuing search, the police found large quantities of illegal drugs. At the trial, however, the court determined that the affidavit was insufficient to establish probable cause, and the evidence was thrown out. By a 6-3 vote, the Supreme Court adopted the good faith exception, which stipulated that the exclusionary rule would not apply when the police were acting from an “objectively reasonable” belief that a search warrant is valid, even if the warrant later proves to be defective. Justice Byron R. White’s majority opinion warned of the social costs of excessive interference with the criminal justice system’s “truth-finding function,” and he insisted that the exclusionary rule was designed only as a deterrent to police misconduct, not to prevent judicial errors. In dissent, Justice William J. Brennan, Jr., argued that the Fourth Amendment requires the suppression of unconstitutionally seized evidence without any regard to its deterrent effect. Although the Leon ruling was rather narrow, the Court subsequently extended the conditions for applying the good faith exception to the exclusionary rule. In Illinois v. Krull (1987), a 5-4 majority of the justices upheld the admission of evidence obtained in a warrantless search authorized by a statute that was later found unconstitutional. In Arizona v. Evans (1995), a 7-2 majority allowed the use of evidence found in a search resulting from police reliance on mistaken court records of outstanding arrest warrants. Thomas T. Lewis

Lochner v. New York Citation: 198 U.S. 45 Date: April 17, 1905 Issue: Maximum-hour laws Relevant amendments: Fifth, Fourteenth Significance: Lochner is the most famous case in which the Supreme Court used the doctrine of substantive due process to overturn a statute regulating labor conditions.

526 / Lochner v. New York

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Journeymen bakers in the late 1900’s often worked more than one hundred hours per week, sometimes in squalid tenement cellars. There was good evidence that the combination of working long hours, breathing flour dust, and being subjected to extremes of hot and cold harmed the health of these workers. In New York, journalist Edward Marshall joined forces with the leader of the Bakers’ Union, Henry Weismann, in a crusade for legislation to improve working conditions in bakeries. In 1895 the state legislature unanWriting for the majority in Lochner, Justice imously passed the Bakeshop Rufus W. Peckham argued that the due process Act, regulating standards of sanclause protected an unenumerated freedom of contract. (Library of Congress) itation and setting maximum hours of work. However, the statute harmed owners of small bakeries that operated on small profit margins. In 1902 one such owner, Joseph Lochner of Utica, was fined fifty dollars when one of his employees worked sixty hours during a week. Appealing the conviction, Lochner’s attorneys argued that the statute violated the substantive liberty protected by the due process clause of the Fourteenth Amendment. After losing in New York courts, Lochner prevailed in the Supreme Court with a vote of five to four. Reaffirming the basic idea in Allgeyer v. Louisiana (1897), Justice Rufus W. Peckham’s opinion for the majority argued that the due process clause protected an unenumerated freedom of contract, and that the legislation regulating hours of labor interfered with the right of employers and employees to agree on the terms of employment. Although the Court had upheld a maximum-hour law for mines and smelters in Holden v. Hardy (1898), the Lochner majority found that such a law in bakeries exceeded the legitimate police powers of the states. Emphasizing the liberty of employees to work as many hours as they wished, Peckham’s opinion suggested that employers and employees possessed similar powers in negotiating conditions of work.

The Cases

Lone Wolf v. Hitchcock / 527

In dissent, John Marshall Harlan argued for a presumption in favor of the legislature’s determination, so that the Court should overturn only laws that are “plainly and palpably beyond all question in violation of the fundamental law of Constitution.” In addition, he quoted statistical evidence that indicated serious health hazards in bakeries. Likewise, Oliver Wendell Holmes criticized the majority’s narrow view of police powers, and he charged that the decision was influenced by social Darwinism and laissez-faire theories. The Lochner case firmly entrenched the freedom of contract doctrine into constitutional law. In subsequent cases, the Court followed the precedent in overturning numerous laws regulating businesses and working conditions. It was only in West Coast Hotel Co. v. Parrish (1937) that the Court firmly rejected the Lochner rationale. Often the period from 1905 to 1937 is referred to as the Lochner era. Thomas T. Lewis

Lone Wolf v. Hitchcock Citation: 187 U.S. 553 Date: January 5, 1903 Issue: Native American treaties Relevant amendment: Fifth Significance: The Supreme Court held that Congress had plenary authority over American Indian affairs and that Indian treaties were subject to unilateral abrogation. Lone Wolf, one of the principal chiefs of the Kiowa Nation, sought an injunction to block congressional ratification of an agreement allotting tribal lands. He argued that the agreement violated the Treaty of Medicine Lodge of 1867, which required the approval of three-fourths of the adult men of the tribe for any cession of tribal land. By a 9-0 vote, the Supreme Court rejected Lone Wolf’s claim. Justice Edward D. White’s opinion stated that Congress had exercised total jurisdiction over tribal affairs “from the beginning” and that the Court must presume the “perfect good faith” of the Congress. Observing that Congress had stopped entering into treaties with the tribes, he concluded that congressional modification or abrogation of Indian treaties was not

528 / Lopez, United States v.

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subject to any judicial review. White did not even mention whether the due process principles of the Fifth Amendment applied in the case. Although Lone Wolf has been called “the Indian’s Dred Scott,” after the Supreme Court’s 1857 decision that ruled African Americans were not American citizens, the precedent has never been directly overturned. Later decisions, however, would suggest that there are significant constitutional limits to congressional power over the tribes. This is especially true in regard to property rights and the due process clause of the Fifth Amendment. Thomas T. Lewis

Lopez, United States v. Citation: 514 U.S. 549 Date: April 26, 1995 Issues: Commerce clause; Tenth Amendment Relevant amendment: Tenth Significance: The Supreme Court held that a federal statute was unconstitutional because Congress had overstepped its authority to regulate interstate commerce. In 1990 Congress passed the Gun-free School Zone Act, making it a federal crime to possess a gun within one thousand feet of a school. After Alfonso Lopez, Jr., a high school student in Texas, was arrested for taking a handgun to school, he was tried under federal law because the federal penalties were greater than those under state law. A federal court of appeals found that the federal statute violated the Tenth Amendment. Most observers expected the Supreme Court to reverse the judgment because the Court in Garcia v. San Antonio Metropolitan Transit Authority (1985) had held that the scope of federal authority to regulate commerce was a political question to be decided by the political process rather than by the Courts. By a 5-4 vote, however, the Court upheld the ruling. Chief Justice William H. Rehnquist’s majority opinion reasoned that possession of guns near a school had nothing to do with interstate commerce and that such an issue is traditionally a concern of local police power. As a principle, he wrote that Congress could regulate only “those activities that have a substantial relationship to interstate commerce.”

The Cases

Lovell v. City of Griffin / 529

The Lopez decision appeared to mark a renaissance for the principle of dual sovereignty, which had largely been abandoned following Carter v. Carter Coal Co. (1936). It was not clear how far the trend would go, but the Court in Printz v. United States (1997) held that Congress had no power to force states to enforce federal regulations absent a particular constitutional authorization. Thomas T. Lewis

Louisiana ex rel. Francis v. Resweber Citation: 329 U.S. 459 Date: January 13, 1947 Issue: Cruel and unusual punishment Relevant amendment: Eighth Significance: After an electric chair failed to kill a convicted murderer because of a mechanical failure, the Supreme Court decided that a second trip to the electric chair would not violate the Eighth Amendment’s proscription against cruel and unusual punishment. Willy Francis, a fifteen-year-old African American, was found guilty of murdering a white druggist and was sentenced to death by electrocution. After the electric chair malfunctioned and a two-minute jolt of electricity failed to kill Francis, his lawyers argued that a second electrocution would involve so much mental anguish that it would constitute cruel and unusual punishment. Speaking for a 5-4 majority, Justice Stanley F. Reed’s majority opinion rejected the argument and found that the unsuccessful attempt at execution was simply “an unforeseeable accident.” Reed noted that an execution would be unconstitutional only if it involved barbarous practices or unnecessary pain. Thomas T. Lewis

Lovell v. City of Griffin Citation: 303 U.S. 444 Date: March 28, 1938 Issue: Freedom of speech Relevant amendment: First

530 / Loving v. Virginia

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Significance: The Supreme Court held that a city ordinance prohibiting the distribution of pamphlets without a permit violated the freedom of speech guaranteed by the First Amendment. Alma Lovell, a member of the Jehovah’s Witness Church, was prosecuted for distributing religious literature in Griffin, Georgia, without the required permission from the city commissioner. The Supreme Court had earlier applied the First Amendment guarantee of free speech to the states through the Fourteenth Amendment in Gitlow v. New York (1925), but the Court had never ruled that the federal guarantee for religious freedom was binding on the states. Speaking for an 8-0 majority, Chief Justice Charles Evans Hughes wrote that the ordinance constituted a system of prior restraint on the expression of ideas. He emphasized that the First Amendment freedom of press extended to pamphlets and other modes of disseminating information and that the freedom to circulate materials was just as essential as the freedom to publish them. Hughes found that it was not necessary to consider the issue of religious freedom. A similar case, Schneider v. Irvington (1939), was also decided under the freedom of speech and press guarantees. It was not until the third case involving the Jehovah’s Witnesses, Cantwell v. Connecticut (1940), that the Court incorporated the freedom of religious exercise into the Fourteenth Amendment. Thomas T. Lewis

Loving v. Virginia Citation: 388 U.S. 1 Date: June 12, 1967 Issues: Marriage; racial discrimination Relevant amendments: Fifth, Fourteenth Significance: The Supreme Court, in striking down a Virginia antimiscegenation law, voided statutes preventing interracial marriage throughout the United States. In Pace v. Alabama (1883), the Supreme Court upheld a law that punished interracial fornication more severely than fornication between members of the same race on grounds that both partners were punished equally. This created the equal application or, in reality, equal discrimination ex-

The Cases

Lucas v. South Carolina Coastal Council / 531

ception to the Fourteenth Amendment’s equal protection clause. After Shelley v. Kraemer (1948) and Brown v. Board of Education (1954), this became an increasingly untenable distinction, but the Court was apparently unwilling to face such a sensitive issue. In the 1960’s, Loving, a white man who had married a black woman, was convicted under a Virginia antimiscegenation law and subsequently challenged the law’s constitutionality. Chief Justice Earl Warren, for a unanimous Court, declared the Virginia law unconstitutional both as a denial of the Fourteenth Amendment’s equal protection law and as a denial of liberty. The decision invalidated all laws forbidding interracial marriage, including those in fifteen southern states. Richard L. Wilson

Lucas v. South Carolina Coastal Council Citation: 505 U.S. 647 Date: June 29, 1992 Issue: Takings clause Relevant amendment: Fifth Significance: The Supreme Court held that when land-use and environmental regulations deprive property owners of the total value of their land, the owners have a takings clause claim unless the governmental authority can defend the regulations as necessary to prevent a public harm or nuisance. In 1986 David Lucas purchased two oceanfront parcels on the Isle of Palms with the intention of constructing single-unit residences. In 1988, however, the state legislature enacted a statute that barred Lucas from erecting permanent structures on his parcels. Lucas filed suit, contending that the ban on construction deprived him of all “economically viable use” of his property and therefore constituted a taking under the Fifth and Fourteenth Amendments, requiring payment of just compensation. The state’s highest court, relying on Keystone Bituminous Coal Association v. DeBenedictis (1987), ruled in favor of the state. By a 6-3 vote, the Supreme Court remanded the case to the state courts to decide whether Lucas had been deprived of all the economic value of his property and whether the building restriction had been designed to prevent a “harmful or noxious use” of the land. Speaking for the major-

532 / Lynch v. Donnelly

The Cases

ity, Justice Antonin Scalia insisted that the government had to do more than simply show that the regulation was in the “public interest.” At the same time, Scalia held that the takings clause applies only to situations in which property owners are deprived of all the economic value of their property. Because most land-use and environmental regulations do not deprive property owners of all economic value, the Lucas decision does not protect many property owners. Thomas T. Lewis

Lynch v. Donnelly Citation: 465 U.S. 668 Date: March 5, 1984 Issue: Establishment of religion Relevant amendment: First Significance: The Supreme Court, by approving a town’s Christmas season display, lessened the strict separation of church and state that had typified many of its decisions. By a 5-4 vote, the Supreme Court upheld a Rhode Island town’s display of a nativity scene because it was accompanied by many Christmas decorations and secular, seasonal items. In the opinion for the Court, Chief Justice Warren Burger held that the presence of so many nonreligious symbols minimized the extent to which this display seemed to foster or establish religion. Justice Sandra Day O’Connor concurred in this case. Justices Harry A. Blackmun, William J. Brennan, Jr., Thurgood Marshall, and John Paul Stevens dissented. Shortly, thereafter, in Allegheny County v. American Civil Liberties Union Greater Pittsburgh Chapter (1989), the Court found that a nativity scene by itself in a public building was a violation. Richard L. Wilson

McCleskey v. Kemp Citation: 481 U.S. 279 Date: April 22, 1987 Issue: Capital punishment Relevant amendment: Eighth

The Cases

McCleskey v. Kemp / 533

Significance: The Supreme Court ruled that Georgia’s use of capital punishment was constitutional, despite statistical studies showing that killers of white victims were four times more likely to be executed than killers of black victims. Warren McCleskey, an African American, was convicted and sentenced to die for killing a white police officer in an armed robbery in 1978. On appeal, his attorneys argued that the state’s death penalty statute was implemented in a racially discriminatory manner, contrary to both the Eighth and Fourteenth Amendments. They emphasized the empirical studies of David Baldus, which demonstrated that the race of the victim was a significant factor in determining whether the defendant would receive the death sentence. Prosecutors had sought the death penalty in 70 percent of the cases involving black defendants and white victims but in only 15 percent of the cases involving black defendants and black victims. Because of the tendency of defendants and victims to belong to the same race, the study found that 4 percent of the black defendants received the death penalty, compared with 7 percent of the white defendants. By a 5-4 margin, the Supreme Court rejected McCleskey’s claim. Justice Lewis F. Powell, Jr.’s opinion for the majority began with the principle that a defendant alleging an equal protection violation had the burden of proving that decision makers in his case had acted “with discriminatory purpose.” McCleskey had presented no evidence that the legislature had enacted or maintained the death penalty to further a racially discriminatory purpose, and the Court had earlier determined, in Gregg v. Georgia (1976), that Georgia’s capital sentencing system “could operate in a fair and neutral manner.” Powell expressed concern that if the Court were to invalidate the use of the death penalty on the basis of a statistical disparity that correlated with race, a logical inference would be to question all criminal punishments in which a similar statistical pattern might be found. The four dissenters answered that the death penalty should be judged by standards more rigorous than those used in other sentences. They also found it unacceptable to accept the risk of racial considerations influencing whether a defendant would live or die. Thomas T. Lewis

534 / McCray v. United States

The Cases

McCray v. United States Citation: 195 U.S. 27 Date: May 31, 1904 Issues: Taxing and spending clause; regulation of commerce Relevant amendment: Tenth Significance: The Supreme Court established that the federal tax power could be used to regulate commerce. Congress had passed a law to regulate the production of oleomargarine. Defendant McCray, convicted for buying colored oleomargarine at a lower than legal price, claimed that Congress had exceeded its proper power to tax for revenue purposes. McCray maintained that the law violated the Tenth Amendment, which gave the states the right to tax on those matters not within the proper scope of the federal government, as well as his rights to due process and just compensation for an improper taking under the Fifth Amendment. As with McCulloch v. Maryland (1819), the question was which level of government had the power to take the action. The Supreme Court, by a

One of the dissenters in McCray, Melville W. Fuller left a small legal legacy to the Supreme Court, although he served as chief justice for twenty-two years. (Collection of the Supreme Court of the United States)

The Cases

McCulloch v. Maryland / 535

6-3 vote, ruled against McCray. Following McCulloch, Justice Edward D. White, in his opinion for the Court, noted there was no explicit ban on Congress levying an excise tax, and therefore, it could be “necessary and proper” within the meaning of Article I, section 8, of the Constitution. White, while reserving the Court’s power to look into abuses, found Congress had a broad taxing power beyond mere revenue generation. With this conclusion, there would be no proper objections from the states under the Tenth Amendment and no proper individual objections under the Fifth Amendment. This ruling was restricted somewhat in the 1920’s but restored in the 1930’s. Chief Justice Melville W. Fuller and Justices Henry B. Brown and Wheeler H. Peckham dissented. Richard L. Wilson

McCulloch v. Maryland Citation: 17 U.S. 316 Date: March 6, 1819 Issue: Federalism Relevant amendment: Tenth Significance: The Supreme Court, in one of its most significant decisions, established the basic outlines of the relationship between the federal government and the states. Chief Justice John Marshall was at his most eloquent in writing the majority opinion for the Supreme Court in this case, which defined the essential relationship between the federal government and the states. At first glance, the Constitution establishes a clear demarcation of responsibilities for all parties to the compact. The federal government (through Congress) receives powers variously referred to as expressed, delegated, or enumerated in Article I, section 8, of the Constitution. The states have broad police powers protected by the Tenth Amendment except for those granted the national government in Article I, section 8. The system developed by the Framers is not quite as clear cut as it initially appears, however. In addition to creating national delegated/ enumerated powers, state reserved/residual powers, and joint concurrent powers, the Framers inserted a phrase in the Constitution that created another class of powers known as implied powers. The phrase, which appears at the very end of Article I, section 8, reads: “Congress shall have

536 / McKeiver v. Pennsylvania

The Cases

the power . . . to make all laws which shall be necessary and proper for carrying into execution all of the foregoing powers.” McCulloch asked the Supreme Court to determine the meaning of the phrase “necessary and proper.” The state of Maryland disagreed with the national government over the creation of the Second National Bank and imposed a tax on the bank that its employee, McCulloch, refused to pay. Maryland maintained that “necessary and proper” was a very restrictive provision that meant the federal government could do only those things that are absolutely necessary to carry into effect the delegated or enumerated powers. The federal government, on the other hand, argued that “necessary and proper” meant, more broadly, that the Congress could pass legislation simply “appropriate” for carrying into effect the foregoing powers. The Supreme Court adopted a broader view and created what are known as the implied powers. It upheld Congress’s power to create the Second National Bank and a state’s right to tax the bank although it was part of the federal government. The necessary and proper clause has come to be known as the elastic clause because it can be stretched to create new federal powers. Because the elastic clause is in Article I, section 8, of the Constitution, it is covered by Article VI’s supremacy clause. Although this expansion of power took place early in U.S. history, only in the last half of the twentieth century did the sphere of activity of the federal government really expand, largely as the result of other interpretations and reinterpretations of the Constitution. Richard L. Wilson

McKeiver v. Pennsylvania Citation: 403 U.S. 528 Date: June 21, 1971 Issue: Juvenile justice Relevant amendment: Sixth Significance: The Supreme Court narrowed the broad due process protection given to juveniles in state proceedings in 1967. When the Supreme Court rendered its 1967 In re Gault decision, the Sixth Amendment’s jury trial guarantee had not yet been applied to the states

The Cases

Mallory v. United States / 537

by incorporation. After the Court incorporated that right for adults in Duncan v. Louisiana (1968), the question arose of whether this guarantee should also be applied to juveniles. In McKeiver, which involved several cases regarding juvenile proceedings in North Carolina and Pennsylvania, the Court answered in the negative, deciding that Gault did not require strict conformity to the Sixth Amendment right to trial by jury but that “fundamental fairness” was all that was required. Despite some scholarly and legal criticism, the ruling in McKeiver remains valid law. Richard L. Wilson

Mallory v. United States Citation: 354 U.S. 449 Date: June 24, 1957 Issue: Defendants’ rights Relevant amendment: Fifth Significance: The Supreme Court reaffirmed its power to create rules of evidence that apply in federal criminal cases. In McNabb v. United States (1943), the Supreme Court ruled that any statements an accused made while being improperly detained could not be used against that person at trial, thereby dramatically reducing the prospect of coerced confessions. In Mallory, Justice Felix Frankfurter wrote the unanimous opinion for the Court sustaining the McNabb rule for use in federal criminal cases but not extending the rule to state criminal cases under the incorporation doctrine of the Fourteenth Amendment. The Court can only set aside state criminal convictions for violation of the Fourteenth Amendment’s due process clause, but it can directly create rules for the federal courts. At one point, it seemed the Court might apply the McNabb rule to the states through the Fourteenth Amendment incorporation doctrine, but the Court chose to rely instead on the Miranda v. Arizona (1966) rule to achieve the comparable purpose. The McNabb rule was not constitutional law, so it could be changed by congressional action. It was effectively eliminated in the late 1960’s. Richard L. Wilson

538 / Malloy v. Hogan

The Cases

Malloy v. Hogan Citation: 378 U.S. 1 Date: June 15, 1964 Issue: Immunity against self-incrimination Relevant amendment: Fifth Significance: The Supreme Court’s decision established that the Fifth Amendment’s protection against self-incrimination applied to the states. Justice William J. Brennan, Jr., wrote the 5-4 majority opinion for the Supreme Court, reversing a contempt citation of a person who declined to testify in a state court. The Court’s ruling applied the Fifth Amendment protection against self-incrimination to the states under the Fourteenth Amendment’s incorporation doctrine. The Court thus reversed a longstanding position that states needed only to achieve fundamental fairness, not strict adherence to the exact terms of the Bill of Rights, to provide due process as required by the Fourteenth Amendment. Although the case did not involve a confession, the decision does appear to be a forerunner of the Miranda v. Arizona (1966) decision. Justices Tom C. Clark and John Marshall Harlan II rejected the majority’s application of the privilege to defendants in state proceedings. Justices Potter Stewart and Byron R. White agreed with the majority that the privilege against self-incrimination applied to the states but dissented because they did not feel that the facts of this case fit the privilege. Richard L. Wilson

Mapp v. Ohio Citation: 367 U.S. 643 Date: June 19, 1961 Issues: Search and seizure; obscenity Relevant amendment: Fourth Significance: The Supreme Court, in a landmark decision, applied the Fourth Amendment to the states through the Fourteenth Amendment under the incorporation doctrine.

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Mapp v. Ohio / 539

Justice Charles Whittaker was among the justices who dissented in Mapp because they objected to applying the incorporation doctrine. (Collection of the Supreme Court of the United States)

Police officers, who claimed to have a warrant but never produced it, searched the Cleveland, Ohio, home of Dolly Mapp looking for a fugitive and gambling materials. Although they did not find what they were seeking, they found allegedly obscene materials. The American Civil Liberties Union filed an amicus brief arguing that the Mapp case would allow the Supreme Court to reconsider whether evidence unlawfully obtained at the state level could be used in court. Over three conservative dissents, Justice Tom C. Clark applied the Fourth Amendment’s prohibition against unreasonable searches and seizures to the states through the Fourteenth Amendment under the incorporation doctrine. The Court applied the exclusionary rule, which prohibited the admission of evidence obtained unlawfully by federal authorities in federal courts, to state courts. Justices Felix Frankfurter, John Marshall Harlan II, and Charles Whittaker dissented because they objected to the incorporation doctrine. The Fourth Amendment contains ambiguity over the definitions of search and seizure and “unreasonable” search and seizure. In the early history of the United States, searches and seizures were largely physical acts, and therefore less controversy surrounded the issue, but in the modern age, the issue of electronic surveillance and long-distance intrusions by aerial observation and photography have led to several significant cases. Richard L. Wilson

540 / Marshall v. Barlow’s

The Cases

Marshall v. Barlow’s Citation: 436 U.S. 307 Date: May 23, 1978 Issue: Search warrant requirement Relevant amendment: Fourth Significance: The Supreme Court found that warrantless inspections or “searches” by Occupational Safety and Hazards Act (OSHA) inspectors violated the Fourth Amendment. A 5-3 majority of the Court in this case declared warrantless searches of businesses by Occupational Safety and Hazards Act (OSHA) inspectors to be violations of the Fourth Amendment. Although the Court had allowed warrantless searches of gun and liquor dealers because of the special nature of those businesses, the Court found that obtaining warrants would not impose an undue burden on OSHA inspectors. In Camara v. Municipal Court (1967), the Court found that historical notions of probable cause do not have to be found before a warrant is issued if an inspection follows “reasonable legislative or administrative standards.” In Barlow’s, the Court held that OSHA inspection warrants must be issued for a specific business as a result of a reasonable, neutral, general plan. Richard L. Wilson

Maryland v. Buie Citation: 494 U.S. 325 Date: February 8, 1990 Issue: Search and seizure Relevant amendment: Fourth Significance: The Supreme Court’s decision established rules for protective searches during an arrest. A 7-2 majority of the Supreme Court created a two-stage test to determine when police officers may make a warrantless “protective sweep” of the premises as a part of an arrest of a suspect in his or her home to ensure safety of the police and others. The first stage says the police may check closets and any spaces immediately adjacent to the location of the arrest

The Cases

Maryland v. Craig / 541

to protect against hidden attacks. The second stage says they may search other areas where a person could be found only if a reasonably prudent officer believed those areas harbored a person dangerous to the police or others. Justice Byron R. White wrote the opinion for the Court with Justices John Paul Stevens and Anthony M. Kennedy concurring. Justices William J. Brennan, Jr., and Thurgood Marshall dissented. Richard L. Wilson

Maryland v. Craig Citation: 497 U.S. 836 Date: June 27, 1990 Issue: Confrontation of witnesses Relevant amendment: Sixth Significance: The Supreme Court upheld a criminal conviction based on a six-year-old child’s testimony that was displayed in the courtroom by a one-way closed-circuit television rather than given in person. A Maryland law specified that a judge might allow the testimony of a young child to be televised if the judge determined that the child’s appearance in the courtroom would result in serious emotional distress, preventing the child from reasonably responding to questions. After Sandra Craig was found guilty of child abuse in a trial using this procedure, she asserted that her conviction was unconstitutional because she had not had an opportunity to confront her accuser. Speaking for a 5-4 majority, Justice Sandra Day O’Connor argued that the Sixth Amendment did not guarantee criminal defendants an absolute right to face-to-face meetings with witnesses at trial. Rather, the main purpose of the confrontation clause was to ensure the reliability of evidence by rigorously testing it in an adversary proceeding. In some instances, moreover, she concluded, the state’s interest in the psychological well-being of a child outweighs a defendant’s right to confront witnesses in court. Stating that exceptions to face-to-face confrontations must be “case specific,” she remanded the case to the lower courts for further proceedings. In a strong dissent, Justice Antonin Scalia scolded the majority for ignoring an explicit guarantee of the Sixth Amendment. The Craig decision left many questions unanswered about the use of children’s testimony. In a companion case, Idaho v. Wright (1990), the

542 / Massachusetts v. Mellon

The Cases

Court found that hearsay evidence (a physician’s account of his interview with allegedly abused children) must be excluded unless such evidence can be shown to be trustworthy. In White v. Illinois (1992), nevertheless, the Court held that the confrontation clause did not prohibit the admission of testimony recalling a child’s “spontaneous declaration” made to police and doctors. Thomas T. Lewis

Massachusetts v. Mellon Citation: 262 U.S. 447 Date: June 4, 1923 Issue: Political questions Relevant amendment: Tenth Significance: By deciding that the issue of noncoercive federal grants to the states was a political controversy and therefore nonjusticiable, the Supreme Court tacitly announced that such programs did not have any constitutional objections. The Sheppard-Towner Act of 1921 provided federal subsidies for state programs promoting infant and maternal health. Massachusetts asserted in federal court that the act undermined state sovereignty by extending federal power into functions properly reserved to the states under the Tenth Amendment. Although acceptance of a subsidy was voluntary, Massachusetts argued that the financial penalty for nonacceptance was so great that states were coerced into accepting the federal funds. By a 9-0 vote, the Supreme Court held that the case presented no “justiciable controversy.” In the opinion for the Court, Justice George Sutherland concluded that the states were not coerced into accepting federal funds and that the program was financed by individual taxpayers. A state had no judicial standing to sue the federal government on behalf of its citizens. Although Sutherland wrote that the Court had no authority to make hypothetical judgments about “abstract questions,” his opinion included an obiter dictum strongly suggesting that federal grants-in-aid were entirely constitutional. In a companion case, Frothingham v. Mellon (1923), the Court held that taxpayers did not have standing to challenge federal spending programs. The two Mellon decisions were important because

The Cases

Massiah v. United States / 543

they removed a potential obstacle to the great expansion of federal grants that occurred during the New Deal period. Thomas T. Lewis

Massiah v. United States Citation: 377 U.S. 201 Date: May 18, 1964 Issues: Right to counsel; exclusionary rule Relevant amendments: Fifth, Sixth Significance: In one of a series of cases expanding the rights of criminal defendants, the Supreme Court held that the prosecution may not use evidence deliberately elicited from an indicted defendant when not in the presence of counsel. After a federal grand jury indicted Winston Massiah and a codefendant on charges of transporting cocaine from South America, Massiah retained a lawyer and was released on bail. He then met with the codefendant who had secretly become a government informant, and Massiah made incriminating statements that were overheard by a federal agent. At the subsequent trial, the judge allowed the agent to testify about the content of the conversation. After Massiah was found guilty in a trial, his lawyers appealed and referred to Spano v. New York (1959), in which the Court had considered the totality of circumstances in holding that the prosecution could not use an involuntary confession elicited from a defendant after his indictment. By a 6-3 vote, the Supreme Court overturned Massiah’s conviction and ruled that the overheard statements could not be introduced as evidence in a criminal trial. Speaking for the majority, Justice Potter Stewart based the decision almost entirely on the Sixth Amendment right to counsel. Once adversary proceedings begin, the defendant has the right to counsel, and therefore, the prosecution may not use any evidence elicited from the defendant outside the presence of a lawyer unless the defendant waives the right. In a strong dissent, Justice Byron R. White argued that the exclusionary rule was not necessary in this situation because there had been “no inherent danger of police coercion.” Massiah was the first confession case that explicitly relied on Sixth Amendment analysis. That same year, the Court in Escobedo v. Illinois

544 / Masson v. New Yorker Magazine

The Cases

(1964) held that the right to counsel begins when the suspect becomes the focus of investigation. The Court applied and expanded the prohibition on the elicitation of information from suspects absent counsel in Brewer v. Williams (1977). Thomas T. Lewis

Masson v. New Yorker Magazine Citation: 501 U.S. 496 Date: January 14, 1991 Issues: Libel; freedom of the press Relevant amendment: First Significance: The Supreme Court held that the First Amendment allows for public persons to win libel suits against journalists who deliberately distort the meaning of their statements. Janet Malcolm, a contributor to The New Yorker magazine, published a two-part article that was highly critical of psychoanalyst Jeffrey Masson, a former director of the Sigmund Freud Archives. In a libel suit against Malcolm and the magazine, Masson claimed that many of the statements attributed to him in quotation marks were fabrications. Because he was a public person, New York Times Co. v. Sullivan (1964) was applicable to the suit, and therefore, Masson had the burden of proving actual malice, which meant either knowledge of falsity or a reckless disregard for truthful reporting. The lower federal courts dismissed the suit, holding that interpretations of actual statements did not constitute actual malice. By a 7-2 vote, the Supreme Court rejected the lower courts’ judgment and remanded the case for a jury trial. Justice Anthony M. Kennedy’s opinion for the majority held that a “deliberate alteration of words” in a statement constitutes a knowledge of falsity if it materially changes “the meaning conveyed by the statement.” In the upcoming trial, therefore, the jury would have the task of deciding whether the meaning of Masson’s statements had been sufficiently altered to satisfy the Sullivan standard. The Masson decision provided notice to writers and publishers to be very careful when using quotation marks that appear to denote a person’s actual words. Thomas T. Lewis

The Cases

Maxwell v. Dow / 545

Maxwell v. Dow Citation: 176 U.S. 581 Date: February 26, 1900 Issues: Grand jury; jury composition Relevant amendments: Fifth, Sixth, Fourteenth Significance: The Supreme Court’s decision in this case, in which it ignored the due process clause, is most notable for the dissent by Justice John Marshall Harlan, which can be seen as a precursor to the Fourteenth Amendment incorporation doctrine. A man convicted of robbery challenged his conviction because of the use of a presentment rather than a grand jury indictment and a jury composed of eight rather than twelve members. The Supreme Court upheld his conviction, eight to one, and summarily dismissed the defendant’s objections. As in the Slaughterhouse Cases (1873), the Court ignored the Fourteenth Amendment’s due process clause and the privileges and immunities clause. To justify its decision, the Court sought out a precedent from a state court in a case taken before the passage of the Fourteenth Amendment. Justice John Marshall Harlan dissented eloquently about the importance of the states being required to follow the Fifth and Sixth Amendment’s requirements for a fair trial and due process, thereby presaging the incorporation of the Bill of Justice John Marshall Harlan’s eloquent dissent Rights through the Fourteenth in Maxwell presaged the incorporation of the Bill Amendment in the twentieth of Rights through the Fourteenth Amendment in century. the twentieth century. (Library of Congress) Richard L. Wilson

546 / Memoirs v. Massachusetts

The Cases

Memoirs v. Massachusetts Citation: 383 U.S. 413 Date: March 31, 1966 Issue: Obscenity Relevant amendment: First Significance: The Supreme Court strengthened the protection of freedom of speech by restricting the scope of what was obscene. Writing for a six-vote majority, Justice William J. Brennan, Jr., ruled that each of the three elements of the national obscenity test announced in Roth v. United States (1957) had to be met for a book to be declared obscene. John Cleland’s eighteenth century erotic classic, Fanny Hill: Memoirs of a Woman of Pleasure (1749), which was reprinted during the 1960’s, dealt with a prostitute’s sexual adventures and had been judged obscene in the early 1800’s. However, because it did not meet all three Roth tests, it could not be banned. This decision strengthened the First Amendment protection of freedom of speech by restricting the government’s power to ban allegedly obscene materials to only those cases in which the three tests of Roth could be satisfied simultaneously. Richard L. Wilson

Meyer v. Nebraska Citation: 262 U.S. 390 Date: June 4, 1923 Issue: Parental rights Relevant amendments: Fifth, Fourteenth Significance: The Supreme Court first applied the doctrine of substantive due process to strike down a law for infringing upon a noneconomic liberty. Shortly after World War I, the Nebraska legislature passed a statute that prohibited schools from teaching any modern non-English language to children before the eighth grade. Meyer, who taught German in a Lutheran school, was convicted of disobeying the law. By a 7-2 vote, the Supreme Court ruled that the law violated the due process clause

The Cases

Miami Herald Publishing Co. v. Tornillo / 547

of the Fourteenth Amendment. Writing for the majority, Justice James C. McReynolds explained that the amendment protected long-recognized liberties such as the right to marry, to acquire knowledge, and to raise children. The law was “arbitrary” and “without reasonable relation” to a legitimate governmental purpose. In dissent, Justice Oliver Wendell Holmes, having often criticized the use of substantive due process to protect a freedom of contract, argued that the state had a reasonable interest in promoting a common language. Meyer was never overturned, and forty years later, it became an important precedent in the development of a constitutional right of privacy. Thomas T. Lewis

Justice Oliver Wendell Holmes dissented in Meyer, arguing that the state had a reasonable interest in promoting a common language. (Library of Congress)

Miami Herald Publishing Co. v. Tornillo Citation: 418 U.S. 241 Date: June 25, 1974 Issue: Freedom of press Relevant amendment: First Significance: The Supreme Court strengthened the power of newspapers by holding that states cannot require newspapers to grant a right of reply to political candidates they criticize. Florida passed a right of reply statute requiring newspapers to grant equal space to political candidates whom the newspaper had criticized. The Miami Herald denied equal space to Pat Tornillo, a local teachers’ union leader, whom the paper had criticized twice editorially, and he sued. State courts upheld the right of reply law, but the Supreme Court

548 / Michigan Department of State Police v. Sitz

The Cases

struck it down as an infringement on the First Amendment freedom of the press. Chief Justice Warren E. Burger, in the unanimous opinion for the Court, wrote that choosing the content of a paper and determining how it portrayed public figures and issues was an exercise in editorial control and judgment, in which the government could not interfere without violating the constitutional guarantee of a free press. Justices William J. Brennan, Jr., William H. Rehnquist, and Byron R. White concurred. Richard L. Wilson

Michigan Department of State Police v. Sitz Citation: 496 U.S. 444 Date: February 27, 1990 Issue: Search and seizure Relevant amendment: Fourth Significance: The Supreme Court upheld the use of drunken driving checkpoints under certain conditions. A group of licensed drivers sued Michigan, challenging the constitutionality of a state law and program that set up drunken driving checkpoints designed to catch people driving under the influence. They argued that the checkpoints constituted an illegal search and seizure under the Fourth Amendment. Lower courts ruled against the program, but by a 6-3 vote, the Supreme Court upheld the Michigan statute and program. The Court maintained that the lower courts had misread the relevant cases, United States v. Martinez-Fuerte (1976) and Brown v. Texas (1979). In the opinion for the Court, Chief Justice William H. Rehnquist agreed that Michigan had a legitimate interest in trying to curb drunken driving. Justice Harry A. Blackmun concurred, and Justices William J. Brennan, Jr., Thurgood Marshall, and John Paul Stevens dissented. Richard L. Wilson

Minersville School District v. Gobitis Citation: 310 U.S. 586 Date: June 3, 1940 Issues: Freedom of religion; freedom of speech

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Minnesota v. Carter / 549

Relevant amendment: First Significance: In this case, the Supreme Court upheld a compulsory flag salute, but the ruling was overturned in a very short time because some justices in the original decision changed their minds. Numerous states required compulsory flag salutes at the beginning of every school day. In Pennsylvania in 1936, two young Jehovah’s Witnesses were expelled from school for refusing to salute the flag. Their parents politely sought an exemption but were refused. They sued in federal district court on free exercise of religion grounds but were turned down by the court. The Supreme Court, by a vote of eight to one, ruled that religious freedom did not exempt people from otherwise valid laws and governmentally imposed political obligations. Justice Harlan Fiske Stone dissented. Although one might expect that patriotic sentiment would lead Americans to support the Supreme Court, surprisingly, there was a broad and profound negative reaction to the ruling. Newspapers and journals strongly opposed the Court’s decision. In one of the more unusual happenings in Court history, some justices who had voted against the Jehovah’s Witnesses announced in open court that they had been wrong and were prepared to change their minds if they were given another opportunity. The Court reversed itself three years later in West Virginia State Board of Education v. Barnette (1943). Richard L. Wilson

Minnesota v. Carter Citation: No. 97-1147 Date: December 1, 1998 Issue: Right to privacy Relevant amendment: Fourth Significance: The Supreme Court held that guests in a private home had no expectation of privacy if they had no personal relationship with the householder and were in the home for a few hours purely to conduct a business transaction. Responding to a tip, a Minnesota police officer looked through a gap in a closed blind located in a ground floor apartment and observed three

550 / Miranda v. Arizona

The Cases

men bagging white powder that looked like cocaine. The two guests were arrested after they left the apartment. At trial, their lawyers moved to suppress the evidence on the grounds that the initial observation was an unreasonable search that violated the Fourth Amendment. They referred to Minnesota v. Olson (1990), in which the Supreme Court held that an overnight guest had a legitimate expectation of privacy within the home visited. In other cases, in contrast, the Court had held that the expectation of privacy in commercial property was less than in a private home. Writing for a 6-3 majority, Chief Justice William H. Rehnquist emphasized the commercial purpose of the visit, the relatively short time the visitors were in the building, and the lack of any previous connection between them and the householder. Because the visitors had no legitimate expectation of privacy in the home, the Court did not make a decision about whether the officer’s observation constituted a search. Justice Anthony M. Kennedy spoke for at least five justices in his concurring opinion, noting that “almost all social guests” would have a legitimate expectation of privacy in a host’s home. Thomas T. Lewis

Miranda v. Arizona Citation: 384 U.S. 436 Date: June 13, 1966 Issues: Immunity against self-incrimination; right to counsel Relevant amendments: Fifth, Sixth Significance: The Supreme Court overturned the conviction of a man who had not been informed of his right to remain silent and to have counsel appointed for him. It also created guidelines for the police in advising suspects of what became popularly known as their “Miranda rights.” Chief Justice Earl Warren delivered the 5-4 majority decision holding that Ernesto Miranda had his constitutional rights denied him when he was interrogated by police at the station. The officers failed to warn him that he had a right to remain silent, to know what he said could be used against him, to have an attorney, and to have an attorney appointed for him if he could not afford one. Miranda made statements harmful to himself, then confessed to the crime and was convicted. Before the

The Cases

Missouri v. Holland / 551

Miranda ruling, his confession would not have been regarded as coerced and therefore inadmissible. Two years earlier in Malloy v. Hogan (1964), the Court mandated that states provide guarantees against self-incrimination in their criminal court proceedings and extended—through dicta—the need for the protection of the accused in police custody. In Miranda, Warren spelled out in some detail the requirements for protecting suspects over the objections of the four dissenting justices. Although he did not mandate the exact words of the Miranda warning, Warren did say what needed to be done to eliminate what the Court perceived as police abuse of the earlier “voluntary” confession rule. He stated that suspects must be given the following four warnings, although not necessarily in these exact words: You have the right to remain silent; anything you say can and will be used against you; you have the right to talk to a lawyer before being questioned and to have him or her present when being questioned; and if you cannot afford a lawyer, the court will provide one for you before questioning begins if you so desire.

Miranda was the most advanced step the Court took in defending those accused of crimes, and it provoked an outpouring of criticism that the Court was soft on crime. At the same time, scholars and others charge that the opinion did not go far enough in defending the rights of the accused. On balance, no hard evidence exists that law enforcement is less effective because of Miranda, but some Court decisions have restricted Miranda, and some possibility of its being overturned exists. Richard L. Wilson

Missouri v. Holland Citation: 252 U.S. 416 Date: April 19, 1920 Issue: Treaties Relevant amendment: Tenth Significance: The Supreme Court created a new federal power to act in accordance with treaties.

552 / Moore v. City of East Cleveland

The Cases

The state of Missouri tried to prevent the enforcement of a statute resulting from the Migratory Bird Treaty Act of 1918, charging that the law intruded on the rights reserved to the states under the Tenth Amendment. By a 7-2 vote, the Supreme Court upheld the federal law enacted in compliance with the migratory bird treaty. An earlier decision not involving a treaty had held that states owned the birds within their borders, but in his opinion for the Court, Justice Oliver Wendell Holmes found that the federal government had to have the power to comply with treaties that, under the supremacy clause of Article VI, were the supreme law of the land. Controversial at the time, this decision lost its significance beginning in the 1930’s as federal power in the domestic area was greatly expanded. Justices Willis Van Devanter and Mahlon Pitney—alone among the conservatives—dissented, upholding the traditional states’ rights viewpoint. Richard L. Wilson

Moore v. City of East Cleveland Citation: 431 U.S. 494 Date: May 31, 1977 Issues: Right of privacy; substantive due process Relevant amendments: Fifth, Fourteenth Significance: The Supreme Court used the doctrine of substantive due process to strike down a local zoning ordinance that prohibited extended families from living together in a single-unit residence. A residential suburb of Cleveland, Ohio, wanting to maintain its character as a single-family neighborhood, enacted a zoning ordinance that restricted each dwelling to a single family. The ordinance defined a family so narrowly that it did not allow Inex Moore, a grandmother, to live with her two grandsons. When Moore refused to comply with the ordinance, she was sentenced to five days in jail and fined twenty-five dollars. By a 5-4 vote, the Supreme Court held that the ordinance violated the due process clause of the Fourteenth Amendment. In a plurality opinion, Justice Lewis F. Powell, Jr., emphasized the importance of “personal choice in matters of marriage and the family,” and he argued that the Fourteenth Amendment protects those liberties that are “deeply rooted in our history and tradition.” He concluded that this tradition was broad enough to encompass various forms of extended families. Powell’s opin-

The Cases

Moore v. Dempsey / 553

ion significantly extended the scope of the substantive due process approach, and his history and tradition standard has often served as a rationale for subsequent decisions. Thomas T. Lewis

Moore v. Dempsey Citation: 261 U.S. 86 Date: February 19, 1923 Issues: Trial by jury; habeas corpus Relevant amendments: Fifth, Fourteenth Significance: The landmark Moore decision marked two constitutional developments: the Supreme Court’s actual utilization of the due process clause of the Fourteenth Amendment as a limitation on state criminal proceedings and the federal courts’ supervision of state proceedings by way of habeas corpus petitions. In 1919 a violent racial clash in Phillips County, Arkansas, resulted in the deaths of scores of African Americans and five whites. More than one hundred African Americans, and no whites, were prosecuted. Swift trials took place in a lynch-mob atmosphere, with large angry crowds intimidating the juries. Six defendants sentenced to death petitioned the federal district court for a habeas corpus hearing. As late as Frank v. Mangum (1915), however, the Supreme Court had refused federal relief for a defendant convicted of murder in state court under mob-influenced conditions similar to those of Phillips County. Therefore, the district court dismissed the petition. By a 6-2 vote, the Supreme Court reversed the ruling and instructed the lower court to hold a habeas corpus hearing. Speaking for the Court, Justice Oliver Wendell Holmes observed that a trial influenced by the threat of mob violence was manifestly inconsistent with the constitutional requirements for due process of law. The state courts had the obligation to guarantee fair trials for the defendants, but if evidence indicated a failure to meet this obligation, the federal courts then had the duty to review the record and determine whether the convictions should be overturned. The two dissenters expressed concern that the ruling would result in excessive federal interference in state proceedings. Thomas T. Lewis

554 / Morehead v. New York ex rel. Tipaldo

The Cases

Morehead v. New York ex rel. Tipaldo Citation: 298 U.S. 587 Date: June 1, 1936 Issue: Freedom of contract Relevant amendments: Fifth, Fourteenth Significance: The Supreme Court, in this unpopular decision, overturned 1930’s minimum-wage legislation. By a 5-4 vote, the Supreme Court struck down a 1930’s New York law that established minimum wages for women and children. Writing for the Court, Justice Pierce Butler said the law violated the freedom of employees to contract for work established by the due process clause of the Fourteenth Amendment. This was a terribly unpopular decision that drew heavy criticism from almost all newspapers in the country that commented on the case. Of more than three hundred editorials, only ten supported the Court. Even the Republican Party criticized the Court’s decision, which was overturned in West Coast Hotel Co. v. Parrish (1937). Justices Charles Evans Hughes, Harlan Fiske Stone, Louis D. Brandeis, and Benjamin N. Cardozo dissented. Richard L. Wilson

Justice Pierce Butler justified striking down a minimum wage law in Morehead by arguing that it violated the Fourteenth Amendment’s due process clause. (Library of Congress)

The Cases

Mulford v. Smith / 555

Mugler v. Kansas Citation: 123 U.S. 623 Date: December 5, 1887 Issue: Governmental regulation of business Relevant amendments: Fifth, Fourteenth Significance: In a transitional decision, the Supreme Court approved of a statute limiting the manufacture and sale of alcoholic beverages but warned that there were limits to a state’s police power. In the 1880’s Peter Mugler was fined and imprisoned for continuing to manufacture beer after the Kansas legislature passed a statute forbidding its sale or manufacture without a license. In appealing the conviction, Mugler argued that Kansas had no authority to prevent him from manufacturing beer for his private consumption or for sale outside the state. Although Mugler contended that the state law constituted a deprivation of property without due process, the state maintained that the law was a valid exercise of its police power, designed to protect the safety, health, morality, and welfare of its citizens. Although the Supreme Court voted eight to one to uphold the Kansas law, Justice John Marshall Harlan wrote for the majority that the Court had a duty to scrutinize governmental regulations to determine whether they had a “substantial relation” to the legitimate ends of the police power. He observed, moreover, that “there were limits beyond which legislation cannot rightfully go.” In dissent, Justice Stephen J. Field vigorously argued that the law violated Mugler’s rights to substantive liberty and property under the due process clause of the Fourteenth Amendment. Together, Harlan’s opinion and Field’s dissent helped prepare the way for the triumph of the substantive due process doctrine in Allgeyer v. Louisiana (1897). Thomas T. Lewis

Mulford v. Smith Citation: 307 U.S. 38 Date: April 17, 1939 Issue: Regulation of commerce Relevant amendment: Tenth

556 / Munn v. Illinois

The Cases

Significance: The Supreme Court used a broad interpretation of the commerce clause to uphold the constitutionality of the Agricultural Adjustment Act of 1938. In striking down the Agricultural Adjustment Act of 1933 in United States v. Butler (1936), the Court held that Congress could not use its taxing powers to regulate agricultural production, a power that was reserved to the states by the Tenth Amendment. The Agricultural Adjustment Act of 1938, like the earlier act, attempted to increase farm prices by limiting productivity. In passing the 1938 law, however, Congress did not pay for the program with a special tax. The major provision of the law was a system of assigning marketing quotas for commodities that were destined to be sold in interstate commerce. Writing for a 7-2 majority, Justice Owen J. Roberts reasoned that the second act was only a regulation of the commodities that flow into interstate commerce. He found that the objective of the law was not to control production but rather to prevent the injury of depressed prices that occurred when an excessive level of commodities flooded the interstate market. By avoiding any consideration of the Tenth Amendment, Roberts managed to uphold the second act without directly reversing his written opinion in Butler. Expanding on the Mulford ruling in Wickard v. Filburn (1942), the Court abandoned the indirect/direct distinction, and defended the agricultural act because of its “substantial economic effect” on interstate commerce. Thomas T. Lewis

Munn v. Illinois Citation: 94 U.S. 113 Date: March 1, 1877 Issue: Regulation of businesses Relevant amendments: Fifth, Fourteenth Significance: This historic ruling recognized that a state might exercise its police power to regulate private businesses. In the 1870’s the Illinois legislature, responding to demands of the Patrons of Husbandry (the Grange), passed a statute limiting the maximum charges for the storage of grain in warehouses located in cities of 100,000

The Cases

Murdock v. Pennsylvania / 557

or more. The operators of several Chicago warehouses argued that the law violated two provisions in the Constitution: the commerce clause and the due process clause of the Fourteenth Amendment. By a 7-2 vote, however, the Supreme Court upheld the legislation. Justice Morrison R. Waite’s majority opinion concluded that the law’s effect on interstate commerce was only incidental, and it rejected the doctrine of substantive due process. Recognizing that the states possessed an inherent police power to protect the safety, welfare, and morality of the public, Waite concluded that this authority extended to the regulation of private property that is “affected with a public interest.” Ironically, the concept of “affected with a public interest” was later used to prohibit regulation of businesses that were small and of limited influence—a practice finally abandoned in Nebbia v. New York (1934). Munn is remembered not only for the majority opinion but also for Justice Stephen J. Field’s vigorous dissent, which defended almost a laissezfaire position on private property. Field charged that the majority opinion was dangerous to liberty because it implied that “all property and all business in the state are held at the mercy of the legislature.” Field’s dissent included a coherent argument in favor of a substantive reading of the due process clause—an interpretation later accepted by the Court in Allgeyer v. Louisiana (1897). Thomas T. Lewis

Murdock v. Pennsylvania Citation: 319 U.S. 105 Date: May 3, 1943 Issue: Preferred freedoms doctrine Relevant amendment: First Significance: The Supreme Court declared that the First Amendment guarantees of freedom of religion, press, and speech occupied a preferred position in U.S. constitutional law. Justice William O. Douglas wrote the opinion for the 5-4 majority, striking down a city ordinance that required the Jehovah’s Witnesses, a religious group, to pay a license tax to go door to door distributing literature and soliciting funds. Murdoch v. Pennsylvania was one of a series of cases commonly known as the Jehovah’s Witnesses cases in which the Supreme

558 / Murphy v. Waterfront Commission of New York

The Cases

Court struck down a wide range of limits on the group’s activities as prior restraints on its freedom of religion, speech, and press. Justices Felix Frankfurter, Stanley F. Reed, Robert H. Jackson, and Owen J. Roberts dissented, maintaining that municipalities had the right to levy reasonable, nondiscriminatory taxes on the sale of religious literature. Although the Court endorsed the “preferred freedoms” doctrine in Murdock, a majority of the justices were no longer supporting the doctrine by the early 1950’s. During the decade of the 1960’s, however, the substance of the doctrine was absorbed into the concepts of fundamental rights, selective incorporation, and strict scrutiny. Richard L. Wilson

Murphy v. Waterfront Commission of New York Citation: 378 U.S. 52 Date: June 15, 1964 Issue: Immunity against self-incrimination Relevant amendment: Fifth Significance: The Supreme Court prohibited federal prosectors from using incriminating evidence compelled by the state, citing the privilege against self-incrimination. Justice Arthur J. Goldberg wrote the unanimous opinion for the Supreme Court, holding that incriminating evidence obtained under compulsion by one level of government may not be used by another in criminal prosecutions. This decision overruled Feldman v. United States (1944) and was handed down on the same day as Malloy v. Hogan (1964), which had applied the Fifth Amendment’s protection against self-incrimination to the states. The logic of Malloy is evident in this decision. The protection against self-incrimination is not absolute, but grants of use immunity must be as broad as the original protection in the Fifth Amendment. This decision was limited by the Court’s ruling in Kastigar v. United States (1972). Richard L. Wilson

The Cases

Murray’s Lessee v. Hoboken Land and Improvement Co. / 559

Murray’s Lessee v. Hoboken Land and Improvement Co. Citation: 18 How. (59 U.S.) 272 Date: February 19, 1856 Issue: Interpretation of due process Relevant amendment: Fifth Significance: In its first sustained definition of “due process of law,” the Supreme Court ruled that the Treasury Department did not violate the Fifth Amendment when it used administrative warrants to recovery embezzled funds. The accounts of a customs collector, Samuel Swartwout, were short more than a million dollars. The Treasury Department used a congressional law of 1820 to place a lien on his property without prior judicial approval. Swartwout claimed that seizing his property without a judicial proceeding violated the due process requirements of the Fifth Amendment. Speaking for a unanimous Supreme Court, Justice Benjamin R. Curtis upheld the constitutionality of both the action and the 1820 law. To determine the meaning of “due process,” the Court must examine the Constitution itself, then look to the “settled usages and modes of proceedings existing in the common and statute law of England,” as modified under U.S. conditions. According to this tradition, judicial proceedings were not required in order for the government to recover its funds. However, Curtis put the government on notice that the due process clause “cannot be so construed as to leave Congress free to make any process ‘due process of law’ by its mere will.” The interpretation Justice Benjamin R. Curtis wrote a of due process in Murray’s Lessee majority opinion in Murray’s Lessee greatly influenced U.S. law, especially that put Congress on notice that it during the second half of the ninecould not merely will “due process.” teenth century. (Collection of the Supreme Court of the United States) Thomas T. Lewis

560 / NAACP v. Alabama

The Cases

National Association for the Advancement of Colored People v. Alabama Citation: 357 U.S. 357 Date: June 30, 1958 Issue: Freedom of association Relevant amendment: First Significance: The Supreme Court explicitly recognized that a freedom of association was implied in the First Amendment’s guarantee of free expression and free assembly and was an “inseparable aspect” of the liberty guaranteed by the due process clause of the Fourteenth Amendment. As the Civil Rights movement started in the 1950’s, several southern states tried to limit the activities of groups like the National Association

Roy Wilkins (second from left) and other NAACP leaders holding a poster listing the names of four African Americans lynched in Mississippi in 1955. (Library of Congress)

The Cases

NAACP v. Button / 561

for the Advancement of Colored People (NAACP). Alabama had a law that required out-of-state businesses to register with the state and disclose their membership list in order to do business in the state. A state court concluded that the NAACP was a business rather than a nonprofit organization and ordered the group to turn over the names of its members to the state attorney general. The NAACP refused and argued that the disclosure of rank-and-file members would lead to reprisals and public hostility, placing unacceptable burdens on the right of members to belong to the association and to support its goals. The Supreme Court unanimously upheld the NAACP’s position. Writing for the Court, Justice John M. Harlan II declared that the Constitution prohibited the states from limiting the ability of the members of a legal and nonsubversive organization “to pursue their collective efforts to foster beliefs which they admittedly have a right to advocate.” Because the freedom to participate in an association is a fundamental right, Harlan instructed courts to use the closest scrutiny when examining state actions that have the effect of curtailing this freedom. In numerous cases since 1958, the Court upheld restrictions on the freedom of association whenever a group is engaged in criminal activities or invidious discrimination. Thomas T. Lewis

National Association for the Advancement of Colored People v. Button Citation: 371 U.S. 415 Date: January 14, 1963 Issue: Freedom of association Relevant amendment: First Significance: In this landmark ruling, the Supreme Court held that the First and Fourteenth Amendments protected the right of an organization to use the courts in promoting its organizational mission. The Virginia legislature enacted a “barratry” statute that threatened to disbar attorneys who represented an organization sponsoring a judicial proceeding without having a “pecuniary interest” in the outcome. The purpose of the statute was to prevent the National Association for the Advancement of Colored People (NAACP) and other civil rights organiza-

562 / National Endowment for the Arts v. Finley

The Cases

Supporters of the NAACP gathering at a rally in Atlantic City, New Jersey, in 1964. (Library of Congress)

tions from sponsoring antisegregation litigation. By a 6-3 majority, the Supreme Court ruled that the statute was unconstitutional. Justice William J. Brennan, Jr.’s opinion for the Court emphasized that litigation is a protected form of political expression and is often the most effective means for an association to promote its goals as well as the only practical way for a minority to petition the government for a redress of grievances. In addition, a state may not ignore constitutional rights under the guise of prohibiting professional misconduct. In dissent, Justice John Marshall Harlan II argued that litigation was primarily conduct rather than First Amendment expression and therefore was subject to reasonable regulations. Thomas T. Lewis

National Endowment for the Arts v. Finley Citation: 118 S.Ct. 2454 Date: June 25, 1998 Issue: Freedom of speech Relevant amendment: First

The Cases

National League of Cities v. Usery / 563

Significance: The Supreme Court upheld a 1990 statute that directed the National Endowment for the Arts (NEA) to consider general standards of decency and respect for diverse beliefs when deciding which projects to fund, but the Court narrowly interpreted the statute as a general exhortation rather than an actual restriction on particular expression. In a suit brought by Karen Finley and three other artists, a court of appeals ruled that the law unconstitutionally discriminated among artists based on their viewpoints. By an 8-1 vote, the Supreme Court reversed the judgment. Speaking for five of her colleagues, Justice Sandra Day O’Connor concluded that the statute did not constitute a threat to First Amendment values because it imposed “no categorical requirement” on the NEA to reject projects on the basis of disfavored viewpoints. In a concurring opinion, Justice Antonin Scalia disagreed with O’Connor’s narrow reading of the law and argued that the First Amendment did not prohibit the government from establishing viewpoint-based restrictions on the use of public funds. In contrast, Justice David H. Souter’s dissenting opinion insisted that it was unconstitutional for the government to disqualify individuals from receiving public benefits simply because their expressed views were considered unacceptable or offensive. Thomas T. Lewis

National League of Cities v. Usery Citation: 426 U.S. 833 Date: March 2, 1976 Issues: Tenth Amendment; commerce clause Relevant amendment: Tenth Significance: The Supreme Court resurrected and expanded the concept of state sovereignty under the Tenth Amendment when it held that Congress had no authority to require state and local governments to pay the minimum wage to public employees, but the Court overturned this decision in 1985. In 1974 Congress amended the Fair Labor Standards Act so that its minimum-wage and maximum-hour standards were binding on state and local governments. By a 5-4 vote, the Supreme Court held that the

564 / National Treasury Employees Union v. Von Raab

The Cases

amendments unconstitutionally infringed on the sovereign powers reserved to the states in the Tenth Amendment. Speaking for the Court, Chief Justice William H. Rehnquist, who had long been a proponent of states’ rights, argued that Congress could not use its powers over interstate commerce to regulate the “States as States,” and that “one undoubted attribute of state sovereignty” is the right of the states is to decide the salaries to be paid to state employees. In a dissent, Justice William J. Brennan, Jr., denounced the decision as “a catastrophic judicial body blow at Congress’s power under the Commerce Clause.” The Usery decision was of great symbolic importance because it appeared to resurrect notions of pre-1937 dual federalism. In Garcia v. San Antonio Metropolitan Transit Authority (1985), Justice Harry A. Blackmun switched his position, so that the justices voted five to four to reverse the Usery holding. The Court, however, resurrected the Tenth Amendment as a restraint on Congress in United States v. Lopez (1995) and Printz v. United States (1997). Thomas T. Lewis

National Treasury Employees Union v. Von Raab Citation: 489 U.S. 656 Date: March 21, 1989 Issue: Search and seizure Relevant amendment: Fourth Significance: The Supreme Court upheld a drug-testing program in the U.S. Customs Service that required urinalysis tests for employees who sought promotions to positions that involve drug interdiction, the carrying of firearms, or the handling of classified information. A union of federal employees challenged the program as a violation of the Fourth Amendment because urine samples were taken without individualized suspicion, probable cause, or a search warrant. Writing for a narrow 5-4 majority, Justice Anthony M. Kennedy applied a balancing test to conclude that the government’s compelling interests in public safety justified the program’s restrictions on the privacy expectations of law enforcement personnel who enforced drug statutes or carried weapons.

The Cases

Near v. Minnesota / 565

Kennedy’s opinion, however, remanded the question of tests for those handling classified information to the lower court for additional consideration. In a dissenting opinion, Justice Thurgood Marshall wrote that there was “no drug enforcement exception to the Constitution.” In a less controversial companion case, Skinner v. Railway Labor Executives Association (1989), the justices voted seven to two to uphold federal regulations that required drug testing of all crew members of trains involved in serious accidents. Thomas T. Lewis

Near v. Minnesota Citation: 283 U. S. 697 Date: January 30, 1931 Issues: Freedom of the press; prior restraint Relevant amendment: First Significance: The Supreme Court for the first time applied the First Amendment guarantee of freedom of the press to state governments under the incorporation doctrine under the Fourteenth Amendment. J. M. Near published a newspaper in Minneapolis and St. Paul, Minnesota, which denounced local government officials—particularly Jews— for graft and corruption. In the absence of applicable federal statutes, Minnesota authorities sought to use state statutes to prevent Near from publishing his newspaper. When the case reached the Supreme Court, there were two major issues involved. The first was whether the Bill of Rights applied to state laws. The second was whether prior restraint was justified. Despite the despicable character of Near’s views, the Court rejected any prior restraint on newspapers and applied the freedom of press portion of the First Amendment to state governments under the incorporation doctrine under the Fourteenth Amendment. Near did not have a strong personal reputation, but his cause was taken up by Robert McCormick, owner of the Chicago Tribune, as an important case involving freedom of the press. With McCormick’s financial help, the case reached the Court, where freedom of the press prevailed. Near remains the landmark case regarding prior restraint. Richard L. Wilson

566 / Nebbia v. New York

The Cases

Nebbia v. New York Citation: 291 U.S. 502 Date: March 5, 1934 Issue: Regulation of business Relevant amendments: Fifth, Fourteenth Significance: Reversing several precedents, the Supreme Court held that the Fourteenth Amendment did not prohibit the states from regulating most aspects of any business open to the public. Responding to the decline of milk prices during the Great Depression, the New York legislature passed the Milk Control Law of 1933, which created a board to fix the retail prices of milk. Leo Nebbia, proprietor of a small grocery store in Rochester, was convicted for selling two quarts of milk below the established price of nine cents each. By a 5-4 vote, the Supreme Court upheld both the conviction and the constitutionality of the law. Writing for the majority, Justice Owen J. Roberts abandoned the “affected with a public interest” doctrine, which had prevented states from regulating numerous categories of business establishments. Although Roberts wrote that “a state is free to adapt whatever economic policy may reasonably be deemed to promote public welfare,” the decision did not reject the freedom of contract doctrine in regard to labor policy. In dissent, Justice James C. McReynolds invoked the doctrine of substantive due process, and he argued that the New York statute interfered arbitrarily with the liberty of small businesspeople and consumers to negotiate prices in an open market. Thomas T. Lewis

Nebraska Press Association v. Stuart Citation: 427 U.S. 539 Date: June 30, 1976 Issue: Freedom of the press Relevant amendment: First Significance: The Supreme Court rejected the use of gag orders to protect the rights of those accused of crimes.

The Cases

New York State Club Association v. City of New York / 567

This case involved a mass murder and sex crime in a small town in Nebraska. At the preliminary hearing, a confession and note written by the defendant were made available to the press. In an attempt to provide the accused with an impartial, fair trial, the local court issued an injunction against not only the police and attorneys but also the members of the press who were present at the hearing in order to prevent the press from publishing the lurid details contained in the confession and note. The Supreme Court unanimously overturned the lower court’s gag order. It found that the Sixth Amendment’s guarantee of the right to an open trial (which means the press has access to the information from the trial) is a long-standing constitutional right that should be balanced against freedom of the press, but balancing should not include prior restraint. When balancing, the lower courts should use the method with the “least means” of disturbing either of the rights (but especially the freedom of the press). One practical result of this case was the increased practice of sequestering juries in dramatic cases and closing preliminary hearings to the press, thereby avoiding the issuance of injunctions that violate the ban against prior restraint. Newspapers continue to object to various aspects of this treatment, but generally the Court has upheld the right of courts to keep certain information out of the hands of the press. Richard L. Wilson

New York State Club Association v. City of New York Citation: 487 U.S. 1 Date: June 20, 1988 Issues: Sex discrimination; freedom of association Relevant amendment: First Significance: The Supreme Court upheld a New York City law that prohibited racial, religious, or sex discrimination in private clubs having more than four hundred members as long as the clubs served meals to guests and regularly received payments from nonmembers for the advancement of trade or business. In the landmark decision Roberts v. United States Jaycees (1984), the Supreme Court ruled that the First Amendment did not prohibit applica-

568 / New York Times Co. v. Sullivan

The Cases

tion of a state nondiscrimination law to a large national club that provided career and business opportunities for its members. In response, the New York City council made its nondiscrimination laws applicable to almost all private clubs, excluding only those that were small and did not receive payments from nonmembers. By a 9-0 majority, the Court upheld the law. Justice Byron R. White’s majority opinion emphasized that the law did not prevent clubs from restricting their membership on the basis of viewpoint and that private organizations advocating particular viewpoints might be able to demonstrate that application of the law would interfere with their First Amendment rights. In subsequent decisions, however, the Court refused to reject all free association claims for private organizations. For example, in Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston (1995), the Court held that the state could not compel a private organization to promote a message of which it disapproved. Thomas T. Lewis

New York Times Co. v. Sullivan Citation: 376 U.S. 254 Date: March 9, 1964 Issue: Libel Relevant amendment: First Significance: The Supreme Court redefined freedom of the press by requiring that someone wishing to recover damages from a newspaper for a false story had to show that the newspaper had actual malice or a reckless disregard for the truth. The New York Times printed an advertisement appealing for funds for civil rights organizations that included technically false statements about Montgomery, Alabama, police commissioner Sullivan. The Supreme Court was asked to rule on a half-million dollar civil damage award to the Sullivan. There was no showing that the Times had any actual malice or reckless disregard for the truth in printing the statements. The most that could be alleged was that the Times was negligent. The Court’s unanimous decision in favor of the newspaper gave vastly greater protection to the news media from libel suits resulting from the publication of factual errors. In his opinion for the Court, Justice William

The Cases

New York Times Co. v. United States / 569

J. Brennan, Jr., pointed out that allowing the damage award from the Alabama courts would provoke greater fear than criminal prosecution. Sullivan could show no monetary loss, but the newspaper would face a loss one thousand times greater than the maximum fine under Alabama criminal statutes. Because double jeopardy protection does not exist in civil litigation, other awards could be levied against the newspaper for the same advertisement. Fear of successive monetary losses would stifle the press, Brennan argued. The Court prohibited public officials from recovering damages for a defamatory falsehood relating to their official conduct unless they proved that the statement was made with actual malice— that is, with knowledge it was false or with a reckless disregard for whether it was false or not. As a result, it became extraordinarily difficult for public officials to ever win a damage suit against a newspaper or television station, no matter how false or defamatory the statements against them were. The same situation also confronts those people who are defined as “public figures.” A public figure, for purposes of defamation law, is a person who “thrusts himself into a public controversy in order to affect its outcome.” An otherwise little-known person unwillingly caught up in a matter of public interest is not a public official and thus need prove only negligence (not actual malice) to prevail against a defamer, according to Wolston v. Reader’s Digest Association (1979). “Public figure” is a more vague term than “public official,” and for that reason, the Court has had to deal with a large number of libel suits involving people who believe they are ordinary citizens but whom the newspapers claim are public figures. Generally speaking, a public figure would be a movie star, a sports hero, or some other well-known person who had been mentioned in the press before a controversy arose. Presumably, the laws of libel apply to any ordinary citizen who is libeled or defamed by a newspaper, and private people are able to recover damages from newspapers or magazines. Richard L. Wilson

New York Times Co. v. United States Citation: 403 U.S. 713 Date: June 30, 1971 Issues: Prior restraint; freedom of speech Relevant amendment: First

570 / New York Times Co. v. United States

The Cases

Significance: In this case, also known as the Pentagon Papers case, the Supreme Court upheld the principle of no prior restraint, disagreeing only on its application to the facts. The Pentagon Papers case was only the second federal court case involving attempted prior restraint on the press—the first after Near v. Minnesota (1931). The Pentagon Papers were several hundred pages of topsecret documents prepared by the U.S. Defense Department at the insistence of former secretary of defense Robert McNamara, who wanted a study of all the documents that led to U.S. involvement in the war in Vietnam. The documents revealed that McNamara and other national leaders had misrepresented to Congress and the public many crucial facts involving the U.S. entrance into the war. They also disclosed that the United States had arguably violated international law, then compounded the original violation by “punishing” North Vietnam for what amounted to its legal response to U.S. actions in the Tonkin Bay incident. Included among the documents were top-secret communications between foreign governments and the United States, communications normally given exceptionally secret treatment because foreign governments might retaliate for their disclosure by refusing to communicate their true position to U.S. leaders. The government had vital reasons for wanting to avoid publication, and the newspapers obviously had important reasons to publish them as the scoop of the decade. All the Pentagon Papers were properly classified secret documents and clearly stolen government property. The person who photocopied the documents was Daniel Ellsberg, a semigovernmental think tank employee required not to violate security clearances as a condition of employment. Despite the criminal penalties for disclosing national secrets, Ellsberg believed that the public had a right to know what was in these documents. After photocopying the papers, he gave them to The New York Times, the most prestigious daily newspaper in the United States. The Times, without any notice to the government, printed some of them in what it said would be a series of installments. Because the editors at the Times possessed the documents for a long time, did not return them to their proper governmental owners, and clandestinely prepared and precipitously published them, they clearly knew their actions might be considered as illegal as Ellsberg’s had been. In separate litigation, Ellsberg was prosecuted for stealing the documents, but the case was thrown out of court when it was discovered that

The Cases

New York Times Co. v. United States / 571

President Richard M. Nixon had ordered a special team of burglars (the same ones who later caused the Watergate scandal) to break into the office of Ellsberg’s psychiatrist, hoping to gain information to discredit him. Acting properly under the law that prohibits the government from pressing a prosecution when the government itself has violated the law, the judge dismissed the case. Failing to convict Ellsberg, the Justice Department decided it would be futile to proceed against the Times. The government did not just want to convict Ellsberg, it also wanted to stop the damaging information before it got into the hands of the public by imposing a prior restraint on the publication of the Pentagon Papers. Despite the government’s argument that national security would be compromised, it did not succeed in imposing a permanent prior restraint on newspapers. Almost immediately after the documents first appeared, government lawyers obtained an injunction blocking further publication, and the Times stopped publishing. Anticipating such events, someone had taken the precaution of distributing the Pentagon Papers to several other U.S. newspapers that were not so enjoined, and other newspapers started publishing the papers the next day. After much legal maneuvering, the cases were consolidated and prepared for immediate appeal to the Supreme Court. When the Court ruled on the case, the vote went against the Nixon administration by a vote of six to three. All nine justices upheld the concept of no prior restraint, but they disagreed as to whether the restraint was justified by the extraordinary issues in this case. There was no majority opinion, and each justice wrote a separate opinion. Generally, three major groups of opinions can be distinguished, with four justices in one group, two justices in another, and three justices in a third group. The first group (Justices Hugo L. Black, William O. Douglas, William J. Brennan, Jr., and Thurgood Marshall) essentially maintained that the U.S. government had no right to impose prior restraints on newspapers. Marshall pointed out that the Nixon administration’s case was further weakened because it could not rely on any duly passed congressional enactment and could only assert a vague presidential power. Some of the four maintained that it was wrong for a lower court to have given even a temporary restraining order, common as they are. Justices Potter Stewart and Byron R. White, who voted with the first four justices to allow publication of the Pentagon Papers to go forward, held that the presumption against prior restraint was too strong in this case but held open the option that someday the government might face such a grave danger that prior

572 / New York v. Belton

The Cases

restraint might be justified. Chief Justices Warren E. Burger and Justices Harry A. Blackmun and John Marshall Harlan II maintained that they were opposed to prior restraint but requested more time to look at the documents before making a final judgment as to whether a permanent restraining order should be issued. Richard L. Wilson

New York v. Belton Citation: 483 U.S. 454 Date: July 1, 1984 Issue: Automobile searches Relevant amendment: Fourth Significance: The Supreme Court expanded the range of warrantless automobile searches. New York police officers stopped an automobile for speeding and ordered the occupants to step out of the car. The officers found cocaine in the pocket of a coat that had been left in the car and belonged to one of the car’s occupants. Citing Chimel v. California (1969), the Supreme Court upheld the search by a vote of six to three because the coat had been within the reach of the occupant while he was in the car. This ruling arguably expanded the permissible areas to be searched by police without a warrant. Justices William J. Brennan, Jr., and Byron R. White dissented, arguing that the majority had misunderstood the case on which they were relying. In Chimel, the Court had permitted searches of the immediate area only to protect the police officer and prevent evidence from being destroyed. In addition, the area searched had to be within the reach of the accused at the time of the arrest, not simply an area that could have been reached at some point. Richard L. Wilson

New York v. Ferber Citation: 458 U.S. 747 Date: July 2, 1982 Issue: Obscenity and pornography Relevant amendment: First

The Cases

New York v. Ferber / 573

Significance: The Supreme Court ruled that pornography depicting sexual performances by children was a category of material not protected by the First Amendment The state of New York, like nineteen other states, had a statute that criminalized the dissemination of material depicting sexual conduct of children under the age of sixteen, regardless of whether the material satisfied the legal definition of obscenity. The owner of a Manhattan adult bookstore, Paul Ferber, was tried and convicted under the statute for selling films that depicted young boys masturbating. The New York Court of Appeals, however, reversed the conviction, holding that the statute violated the First Amendment because it was inconsistent with the recognized legal standard of obscenity. The state then appealed the case to the U.S. Supreme Court. The Court voted unanimously to uphold the conviction of Ferber under the New York statute. Justice Byron White, writing for the Court, proclaimed that child pornography was “a category of material outside the protection of the First Amendment.” He emphasized five points. First, the state had a compelling interest in safeguarding minor children from sexual exploitation and abuse. Second, the distribution of materials depicting the sexual activity of juveniles was intrinsically related to their sexual abuse. Third, the advertising and selling of child pornography provided an economic motive for an activity that was everywhere illegal. Fourth, child pornography was of very modest literary, scientific, or educational value. Finally, the recognition of a category of material outside the protection of the First Amendment was compatible with earlier decisions of the Court. White concluded that the test for child pornography was much less demanding than the three-part test in Miller v. California (1973), but he also wrote that the prohibited conduct must be adequately defined in state law. The most important aspect of the Ferber decision was that all the justices agreed that the state’s interest in protecting children was sufficiently compelling to justify more discretion in criminalizing child pornography than when dealing with other forms of pornography. The majority of the Court was unwilling to consider the possibility of constitutional protection of any material depicting juveniles engaged in sexual conduct. A liberal minority cautioned, however, that such material would be protected

574 / Nguyen v. Immigration and Naturalization Service

The Cases

by the First Amendment if its depictions were found to contain serious literary, artistic, scientific, or medical value. Thomas T. Lewis

Nguyen v. Immigration and Naturalization Service Citation: No. 99-2071 Date: June 11, 2001 Issue: Gender distinctions allowed by the due process clause of the Fifth Amendment Relevant amendment: Fifth Significance: The Supreme Court upheld a federal statute that established different citizenship rules for persons born abroad and out of wedlock depending on whether the father or mother was a U.S. citizen. Tuan Anh Nguyen was born out of wedlock in Vietnam to a Vietnamese mother and Joseph Boulais, a U.S. citizen. From the age of six, Nguyen was raised by his father as a permanent U.S. resident. After Nguyen pled guilty to sexually assaulting a child at the age of twenty-two, an immigration judge ordered him deportable. Nguyen and Boulais appealed on the basis of citizenship claims to the Board of Immigration Appeals, but they were unable to meet the citizenship requirements for one born abroad by a citizen father and a noncitizen mother. The appeals court for the Fifth Circuit found that the gender distinctions in the immigration laws were unconstitutional. By a 5-4 margin, the Supreme Court, reversed the ruling of the lower court. In writing the opinion for the Court, Justice Anthony M. Kennedy applied the precedent of evaluating a gender-based classification with “intermediate scrutiny,” meaning that the classification must serve important governmental objectives and that any discriminatory provisions must be substantially related to those objectives. Kennedy concluded that this particular gender-based distinction in immigration law was valid for two reasons: to ensure that a biological parent-child relationship exists and to ensure that the child and citizen parent have a demonstrated opportunity to develop a meaningful relationship consisting of “real, everyday ties.” Thomas T. Lewis

The Cases

Noto v. United States / 575

Norris v. Alabama Citation: 294 U.S. 587 Date: April 1, 1935 Issues: Trial by jury; Jury composition Relevant amendments: Sixth, Fourteenth Significance: In its second Scottsboro rape decision, the Supreme Court held that the African American defendants had been denied a fair trial because African Americans had been systematically excluded from juries. In Powell v. Alabama (1932), the Supreme Court ruled that the conviction of the “Scottsboro boys,” a group of young African American men, without effective assistance of counsel violated the Fourteenth Amendment’s due process requirement. After defendant Clarence Norris was sentenced to death in a second trial, his lawyers presented evidence of systematic racial exclusion from both the grand jury and trial jury. Writing for a unanimous Court, Chief Justice Charles Evans Hughes reversed the conviction as inconsistent with the due process and equal protection clauses. In both Powell and Norris, the justices ruled on the basis of immutable principles of justice and declined the opportunity to make the Sixth Amendment explicitly binding on the states through the Fourteenth Amendment. Thomas T. Lewis

Noto v. United States Citation: 367 U.S. 290 Date: June 5, 1961 Issue: Freedom of association Relevant amendment: First Significance: The Supreme Court seriously undermined the anticommunist Smith Act (1940) by holding that mere membership in an alleged subversive group is not enough to show intent to commit conspiracy. Freedom of association is often called into question by indictments for conspiracy because it is alleged that some associations are conspiracies to

576 / O’Gorman and Young v. Hartford Fire Insurance Co.

The Cases

use violence to overthrow the U.S. government. After the South attempted to secede from the Union in the Civil War, it has been illegal to attempt the violent overthrow of the U.S. government, and various Supreme Court decisions have held some associations are conspiracies that may be restrained as clear and present dangers to the nation. This phrase came from an attempt on the part of Justices Oliver Wendell Holmes and Louis D. Brandeis to define a test for balancing liberty against order. They intended the clear and present danger test to be valid only if used with all the safeguards they set out. Until the 1960’s, the Court faced great difficulty defining “clear and present danger” and often employed a test that viewed the seriousness of the danger discounted by its improbability or used the bad tendency test. Justices Hugo L. Black and William O. Douglas expressed their conclusion in a series of dissents that the clear and present danger test violated the First Amendment and only an absolute standard should be used. In Noto, the Court took an important step in the direction of the BlackDouglas position when it held that Communist Party membership was not in itself evidence of conspiracy to overthrow the government. This made it more difficult for the government to harass the Communist Party under the provisions of the 1940 Smith Act. Richard L. Wilson

O’Gorman and Young v. Hartford Fire Insurance Co. Citation: 282 U.S. 251 Date: January 5, 1931 Issue: Substantive due process Relevant amendments: Fifth, Fourteenth Significance: The Supreme Court ceased to use the substantive due process concept to overrule legislative judgments in economic liberty cases. Justice Louis D. Brandeis wrote the opinion for the 5-4 majority, upholding a New Jersey statute that regulated the fees insurance companies paid to their local agents. Previously, the Supreme Court would have struck down this statute as a violation of the substantive due process clause of the Fourteenth Amendment, but in this case, the Court ruled that legisla-

The Cases

Olmstead v. United States / 577

Justice Louis D. Brandeis wrote the majority opinion in O’Gorman, which drew vigorous dissents from four other justices. (Library of Congress)

tive enactments were to be presumed constitutional and could be overturned only if there were a factual foundation in the record for unconstitutionality. Brandeis further argued that the Court should stop using the substantive due process concept to overrule legislatures in economic matters. Justices Willis Van Devanter, James C. McReynolds, George Sutherland, and Pierce Butler dissented vigorously, asserting freedom of contract and the protection of property required exactly the restraints on the legislative branch being abandoned by the majority in this case. Richard L. Wilson

Olmstead v. United States Citation: 277 U.S. 438 Date: June 4, 1928 Issue: Right to privacy Relevant amendment: Fourth Significance: The Supreme Court allowed federal prosecutors in a criminal trial to use evidence obtained by wiretaps placed on outside telephone lines without a warrant, based on the idea that conversations were not protected by the Fourth Amendment. The ruling was reversed thirty-nine years later.

578 / Orr v. Orr

The Cases William Howard Taft served as president of the United States from 1909 to 1913, but his greatest ambition was to be chief justice—a position that he held from 1921 until his death in 1930. (Collection of the Supreme Court of the United States)

In convicting Roy Olmstead of illegally selling intoxicating liquors, federal prosecutors relied almost entirely on transcripts of his telephone conversations. Writing for a 5-4 majority, Chief Justice William H. Taft upheld the lower court’s ruling, concluding that the interception of a message outside a person’s home did not constitute a search and seizure within the meaning of the Fourth Amendment. Taft emphasized that government agents had not trespassed into Olmstead’s property, and he interpreted the term “effects” as referring only to tangible things. In dissent, Justice Louis D. Brandeis argued that the Fourth Amendment protected a broad right to individual privacy rather than simply material objects. The Supreme Court overturned Olmstead and accepted Brandeis’s viewpoint in the landmark decision Katz v. United States (1967). Thomas T. Lewis

Orr v. Orr Citation: 440 U.S. 268 Date: March 5, 1979 Issues: Gender issues; standing Relevant amendments: Fifth, Fourteenth

The Cases

Osborne v. Ohio / 579

Significance: The Supreme Court ruled that Alabama’s law making husbands, but not wives, liable for alimony payments was a violation of the equal protection clause of the Fourteenth Amendment. In Craig v. Boren (1976), the Court had announced that it would henceforth evaluate gender classifications according to a heightened scrutiny standard. The Orr decision was an early application of this standard. When William and Lillian Orr were divorced, William Orr was ordered to make alimony payments to his former wife. He argued that the state’s differential requirements for men and women were discriminatory. The state responded that the law was justified by two important goals: providing for needy ex-wives and compensating them for the economic discrimination produced by the traditional marital role. Speaking for a 6-3 majority, Justice William J. Brennan, Jr., ruled that the law was not “substantially related” to the state’s legitimate objectives. Because alimony awards were based on individual circumstances, a genderneutral law would give just as much help to needy ex-wives. Likewise, statutes designed to compensate for past discrimination must be “carefully tailored” not to discriminate unnecessarily and not to reinforce traditional “stereotypes about the ‘proper place’ of women and their need for special protection.” The three dissenting justices argued that William Orr lacked standing to sue because a law based entirely on need would not have changed his financial obligations. Thomas T. Lewis

Osborne v. Ohio Citation: 495 U.S. 103 Date: April 18, 1990 Issue: Pornography Relevant amendment: First Significance: The Supreme Court upheld statutes making mere possession of child pornography a crime. By a 6-3 vote, the Supreme Court upheld a law that made it illegal to simply possess child pornography. As in New York v. Ferber (1982), the Court found that the importance of protecting children from sexual exploitation was so great as to override any protection for adults’ rights to possess

580 / Pacific Mutual Life Insurance Co. v. Haslip

The Cases

obscene materials. Unlike Ferber, which involved the sale of child pornography, this case involved people’s right to possess obscene materials for their own use in their own home, which presumably had constitutional protection after the Court’s ruling in Stanley v. Georgia (1969). Justice Byron R. White wrote the opinion, and Justice Harry A. Blackmun concurred. Justices William J. Brennan, Jr., Thurgood Marshall, and John Paul Stevens dissented, finding that the statute was overbroad even after the construction had been narrowed. Richard L. Wilson

Pacific Mutual Life Insurance Co. v. Haslip Citation: 111 S.Ct 1032 Date: March 4, 1991 Issue: Trial by jury Relevant amendments: Fifth, Fourteenth Significance: In the face of a challenge brought by business, the Supreme Court upheld sizable punitive awards made by juries. Justice Harry A. Blackmun wrote the opinion for the 7-1 majority, upholding a sizable punitive damage award made in Alabama. Earlier, the Supreme Court had rejected a challenge to such jury awards on Eighth Amendment grounds. In this case, the Court rejected the argument that the jury decision was so irrational and unrelated to the plaintiff’s actual injuries as to run afoul of the Fourteenth Amendment’s due process guarantee. Although Blackmun acknowledged there might be cases in which an exceedingly irrational jury award might violate due process protections, generally he defended the common-law process of judicial determinations and found that the Alabama courts had reasonably well provided for rational decision making. Justices Antonin Scalia and Anthony M. Kennedy concurred. Justice Sandra Day O’Connor dissented, finding that the Alabama procedure did not provide for “rational implementation.” Richard L. Wilson

The Cases

Payne v. Tennessee / 581

Palko v. Connecticut Citation: 302 U.S. 319 Date: November 12, 1937 Issue: Double jeopardy Relevant amendments: Fifth, Fourteenth Significance: The Supreme Court refrained from incorporating the Fifth Amendment’s double jeopardy protection and applying it to the states. Connecticut indicted Palko for the capital offense of first-degree murder, but the jury convicted him only of second-degree murder and sentenced him to life imprisonment. Connecticut’s constitution and laws permitted a second trial in certain cases, and the state tried and convicted Palko again—this time of the more serious capital offense. In the same circumstances, the federal government could not retry Palko without running afoul of the Fifth Amendment’s ban on double jeopardy. Facing execution, Palko appealed, arguing that the due process clause of the Fourteenth Amendment incorporated the double jeopardy ban and applied it to the states. By an 8-1 vote, the Supreme Court disagreed, finding against Palko. In the opinion for the Court, Justice Benjamin N. Cardozo wrote that the Fourteenth Amendment’s promise of due process did not include, as a part of fundamental fairness, the Fifth Amendment’s promise that no person can be tried twice for the same offense. Justice Pierce Butler dissented. Palko was executed, but decades later, the Court reversed itself in Benton v. Maryland (1969). Richard L. Wilson

Payne v. Tennessee Citation: 111 S.Ct. 2597 Date: June 27, 1991 Issue: Capital punishment Relevant amendments: Fifth, Eighth Significance: The Supreme Court allowed victim impact statements to be included in the capital sentencing phase of trials.

582 / Payton v. New York

The Cases

After convicting Payne of murder, the prosecutor called some of the victim’s family to testify in the penalty phase and referred to those statements during closing arguments. Upon being sentenced to die, Payne appealed to the Supreme Court, citing existing precedents against allowing testimony regarding the impact of his crime, but the Court upheld the conviction and the sentencing. Chief Justice William H. Rehnquist wrote the opinion for the 6-3 majority, overturning Booth v. Maryland (1987), which prohibited victim impact testimony, and South Carolina v. Gathers (1989), which prohibited prosecutors from mentioning the crime’s impact on the victim or the family. The Court ruled that the Eighth Amendment did not bar such testimony. Richard L. Wilson

Payton v. New York Citation: 445 U.S. 573 Date: April 15, 1980 Issue: Search and seizure Relevant amendment: Fourth Significance: The Supreme Court declared that police need an arrest warrant before they make a nonconsensual entrance into an accused’s residence to make an arrest. Justice John Paul Stevens wrote the opinion for the 6-3 majority on the Supreme Court, declaring that an arrest warrant was needed before an arrest was made if the arrest required a nonconsensual entrance into a home. Exceptions could be made if there were exigent circumstances, such as if the police were in hot pursuit of a felon. The long-standing rule had been that a search warrant was necessary to make a nonconsensual search of a residence, but this principle had not been previously applied to the arrest itself. Some experts have argued that a search warrant should also be necessary in these circumstances. Still others, including the dissenters in Payton, would not have gone as far as the Court did in this case. Chief Justice Warren E. Burger and Justices Byron R. White and William H. Rehnquist dissented. Justice Harry A. Blackmun concurred separately. Richard L. Wilson

The Cases

Penry v. Lynaugh / 583

Penn Central Transportation Co. v. City of New York Citation: 438 U.S. 104 Date: June 26, 1978 Issues: Fifth Amendment; takings clause Relevant amendment: Fifth Significance: The Supreme Court established several important principles governing the takings impact of regulations. After a local preservation committee made New York’s Grand Central Station a national landmark, Penn Central was denied the right to build a fifty-story building on arches over the train terminal. New York City allowed Penn Central certain “transferable development rights” to nearby transfer sites, but Penn Central was not satisfied and sued New York City, claiming that its inability to build constituted a taking and a denial of due process. By a 6-3 vote, the Supreme Court found the zoning restriction was not a taking because it did not excessively “frustrate distinct investment-backed expectations,” a phrase created by the Court that found its way into subsequent cases. The Court did not take up transferable rights directly but suggested that such rights might either mitigate the situation so a taking would not occur or act as a form of compensation. It seems obvious that the Court had the value of historic preservation in its collective mind in reaching this unusual decision. Richard L. Wilson

Penry v. Lynaugh Citation: 492 U.S. 302 Date: June 26, 1989 Issue: Capital punishment Relevant amendment: Eighth Significance: The Supreme Court upheld capital punishment for mentally retarded but legally sane people. Defendant Penry was moderately mentally retarded but judged legally sane so that he could be tried, convicted, and sentenced to death for

584 / Personnel Administrator of Massachusetts v. Feeney

The Cases

murder and rape in Texas. Justice Sandra Day O’Connor wrote the opinion for the Supreme Court, which was unanimous in its decision but divided on the reasons. Other justices concurred in part and dissented in part. On the narrow issue of this defendant’s trial, the Court reversed his sentence to death for murder and rape because the jury had not been specifically instructed that it could consider mitigating circumstances such as his mental retardation. On the broader issue of whether a mildly or moderately mentally retarded individual could be sentenced to death, the Court found that the Eighth Amendment did not bar capital punishment in such cases. The Court did not disturb its conclusion in Ford v. Wainwright (1986) that legally insane individuals could not be executed. Richard L. Wilson

Personnel Administrator of Massachusetts v. Feeney Citation: 442 U.S. 256 Date: June 5, 1979 Issues: Employment discrimination; sex discrimination Relevant amendments: Fifth, Fourteenth Significance: The Supreme Court upheld veterans’ hiring preferences in public employment as nondiscriminatory toward women. A Massachusetts statute gave absolute lifetime preference for veterans for hiring in public employment despite the equal protection clause of the Fourteenth Amendment. When some women were not hired despite having higher scores than veterans on civil service examinations, they claimed sex discrimination. Although 98 percent of Massachusetts veterans were men and the veterans’ preference applied to 60 percent of the jobs in the state, the Supreme Court, by a vote of seven to two, found that the law did not discriminate against women because it also affected men who were not veterans, making the law neutral on its face, not gender based. In short, disproportionate impact was not the equivalent of discrimination. Justices Thurgood Marshall and William J. Brennan, Jr., dissented because the impact on women was so great and because the state

Pierce v. Society of Sisters / 585

The Cases

had not met a burden of showing that gender considerations had played no role in the legislative decisions. Richard L. Wilson

Pierce v. Society of Sisters Citation: 268 U.S. 510 Date: March 17, 1925 Issue: Parental rights Relevant amendment: First Significance: Reinforcing a 1923 decision, the Supreme Court again applied the doctrine of substantive due process to strike down a law for infringing on a noneconomic liberty. In 1922 the voters of Oregon approved an initiative that required most children between eight and sixteen to attend public schools. A private parochial school contended that the regulation violated both the right of the school to engage in a useful business and the right of parents to direct the education of their children. In a unanimous decision, the Supreme Court held that the law was inconsistent with the due process clause of the Fourteenth Amendment. Justice James C. McReynolds explained that constitutional liberties “may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the state.” Although the case related to religious freedom, the Court did not choose to consider whether or not the First Amend-

Writing for the majority in Pierce, Justice James C. McReynolds stated that constitutional liberties “may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the state.” (Library of Congress)

586 / Plyler v. Doe

The Cases

ment might be applicable to the states. Justice Oliver Wendell Holmes, who disliked substantive due process, did not explain why he joined Pierce after dissenting in Meyer v. Nebraska (1923). The Pierce decision, combined with Meyer, meant that the Court firmly recognized that the “liberty clause” protected both economic and noneconomic liberties. When the Court ceased to protect economic liberties after 1937, it did not overturn the Meyer/Pierce precedents, and they were important to the Court’s recognition of a right to privacy in Griswold v. Connecticut (1965). Thomas T. Lewis

Plyler v. Doe Citation: 457 U.S. 202 Date: June 15, 1982 Issues: Alien rights; inverse incorporation Relevant amendments: Fifth, Fourteenth Significance: The Supreme Court used heightened scrutiny in holding that the denial of educational benefits to the children of undocumented aliens violated the equal protection clause of the Fourteenth Amendment. In 1975 the state of Texas revised its education laws, encouraging local school boards to deny enrollment of children whose parents had not been legally admitted into the United States. Opponents of the revised policy brought a class-action challenge on behalf of children of Mexican origin who lacked proper documentation. Writing for a 5-4 majority, Justice William J. Brennan, Jr., held that Texas had failed to demonstrate that the exclusion was a rational means for furthering a “substantial state interest.” He argued that the denial of educational opportunity severely restricted the future potentialities of “a discrete class of children not accountable for their disabling status.” The Fourteenth Amendment’s phrase “within its jurisdiction,” according to Brennan, applied “to anyone, citizen or stranger, who is subject to the laws of the state.” Plyler’s use of intermediate scrutiny rather than strict scrutiny meant that future Supreme Courts would not necessarily strike down all restrictions on public benefits for illegal aliens. The issue became especially controversial when California voters in 1994 adopted Proposition 187,

The Cases

Powell v. Alabama / 587

which was designed to eliminate nonemergency benefits for illegal aliens. Congress upheld the measure with the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, while recognizing that the Plyler decision continued to be binding in regard to education. Thomas T. Lewis

Pointer v. Texas Citation: 380 U.S. 400 Date: April 5, 1965 Issue: Confrontation of witnesses Relevant amendment: Sixth Significance: The Supreme Court applied the Sixth Amendment right of the accused to confront witnesses to the states through the incorporation doctrine. An attorney for Pointer objected to the use during his trial of a transcript containing the testimony of a robbery victim who had moved out of state. The testimony was taken at a preliminary hearing in which the Pointer was present but without counsel. Pointer was convicted largely on the basis of this transcript. Justice Hugo L. Black wrote the unanimous opinion for the Court, which overturned Pointer’s conviction. The Court found that the Sixth Amendment’s guarantee to the accused of the right to confront witnesses is so fundamental that it applies to the states through incorporation under the Fourteenth Amendment’s due process clause. Justices Arthur J. Goldberg, John M. Harlan II, and Potter Stewart concurred separately. Richard L. Wilson

Powell v. Alabama Citation: 287 U.S. 45 Date: November 7, 1932 Issue: Right to counsel Relevant amendment: Sixth Significance: In this, the first of the Scottsboro cases, the Supreme Court overturned the death sentences of the seven African Americans convicted of rape.

588 / Presser v. Illinois

The Cases

Near Scottsboro, Alabama, nine young African American men were tried on charges of raping two white women on a freight train in 1931. Eight were convicted and sentenced to death. Alabama’s highest court upheld the convictions of seven of the young men. The Scottsboro cases were then appealed to the Supreme Court. Justice George Sutherland wrote the opinion of the 7-2 majority, overturning the conviction and death sentence of the Scottsboro boys for rape. Sutherland held that the Fourteenth Amendment’s due process clause mandated a fair trial, which required the effective assistance of legal counsel in capital cases. Because the Fourteenth Amendment applied to the states, the Alabama conviction could not stand. Justice Pierce Butler dissented and was joined by James C. McReynolds, arguing that the defendants had had effective representation and that the Court was making an unnecessary intrusion into the functioning of state courts. Richard L. Wilson

Presser v. Illinois Citation: 116 U.S. 252 Date: January 4, 1886 Issues: Incorporation doctrine; right to bear arms Relevant amendment: Second Significance: The Supreme Court upheld an Illinois law that prohibited parading with arms by any groups other than the organized militia. In Presser v. Illinois, Justice William B. Woods argued that the Second Amendment applied to the federal government and not to the states. (Collection of the Supreme Court of the United States)

The Cases

Printz v. United States / 589

After Herman Presser was convicted for leading a parade of armed members of a fraternal organization, he asserted that the law violated the rights protected by the Second and Fourteenth Amendments. Writing for a unanimous Supreme Court, Justice William B. Woods held that the Second Amendment applied only to the federal government and not to the states. Woods also suggested in dicta (in an individual, nonbinding opinion) that the regulation in question did not appear to infringe on the right to keep and bear arms. Presser was never reversed. If the Court were to make the Second Amendment binding on the states, it is highly unlikely that this would preclude the states from making reasonable regulations to protect the public safety. Thomas T. Lewis

Printz v. United States Citation: 521 U.S. 98 Date: June 27, 1997 Issues: State sovereignty; commerce clause Relevant amendment: Tenth Significance: The Supreme Court held that a congressional statute intruded on the rights of the states when it required local law enforcement officers to conduct background checks on prospective handgun purchasers. Two law enforcement officers, Sheriff Jay Printz of Montana and Sheriff Richard Mack of Arizona, challenged the constitutionality of a key provision of the Brady Handgun Violence Prevention Act of 1993. Speaking for a 5-4 majority, Justice Antonin Scalia held that Congress had no power to require the states to enforce a federal regulatory program absent a particularized constitutional authorization. Scalia argued that the Constitution established a system of dual sovereignty, and that the states, as an essential attribute of their retained sovereignty, are “independent and autonomous within their proper sphere of authority.” In his dissent, Justice John Paul Stevens argued that the commerce clause authorized Congress to regulate interstate commerce in handguns and that nothing in the Tenth Amendment prohibits Congress from delegating enforcement to the states.

590 / R.A.V. v. City of St. Paul

The Cases

Although the Printz decision had many implications for federalism, it did not have much direct impact on the Brady bill. More than half the states had laws requiring background checks consistent with the federal statute, and the federal government was scheduled to conduct its own background checks on gun purchasers in late 1998. Thomas T. Lewis

R.A.V. v. City of St. Paul Citation: 505 U.S. 377 Date: June 22, 1992 Issue: Symbolic speech Relevant amendment: First Significance: The Supreme Court ruled that a city’s hate speech ordinance violated the First Amendment because it discriminated on the basis of the content of the speech. Responding to a perceived increase in hate speech, many states, communities, and universities in the 1990’s passed ordinances outlawing expressions of hatred. St. Paul, Minnesota, passed an ordinance making it a misdemeanor to display a symbol such as a burning cross or a Nazi swastika with the intent of arousing anger or fear “on the basis of race, color, creed, religion, or gender.” After Robert A. Viktora and other white teenagers burned a cross on the lawn of the only black family in the neighborhood, the teenagers were prosecuted under the city’s ordinance. The Minnesota supreme court upheld the ordinance, interpreting the document as a prohibition on the use of fighting words, which were not protected by the First Amendment. By a 9-0 vote, the Supreme Court reversed the judgment. Writing for a majority of five, Justice Antonin Scalia emphasized that the First Amendment generally prevents government from proscribing speech and expressive conduct because of disapproval of the ideas expressed. He argued that the ordinance contained “viewpoint discrimination” when it proscribed messages of racial hatred and especially messages “based on virulent notions of racial supremacy.” The point of the First Amendment, he noted, “is that the majority preferences must be expressed in some fashion other than silencing speech on the basis of its content.” Justice Byron R. White, speaking for four justices, found that the ordinance was

The Cases

Red Lion Broadcasting Co. v. FCC / 591

unconstitutionally overbroad because it criminalized expressive conduct that “causes only hurt feelings, offense, or resentment.” With the R.A.V. decision, it is difficult to see how hate speech legislation might be made to conform to constitutional standards. Conduct is another matter. St. Paul could have prosecuted Viktora and his friends with antitrespass laws. In Wisconsin v. Mitchell (1993), the Court approved of extra punishments for those found guilty of crimes motivated by racial hatred. Thomas T. Lewis

Red Lion Broadcasting Co. v. Federal Communications Commission Citation: 393 U.S. 367 Date: June 9, 1969 Issue: Freedom of speech Relevant amendment: First Significance: The Supreme Court upheld the fairness doctrine that required television and radio broadcasters to provide reply time for those criticized on air. A radio station broadcast an attack against Fred Cook, who had written a book criticizing Arizona senator Barry Goldwater, but the station refused to allow Cook time to respond. Justice Byron R. White wrote the unanimous 8-0 opinion (Justice William O. Douglas did not participate) upholding the fairness doctrine of the Federal Communications Commission (FCC). The Court held that the FCC could require broadcast licensees to allow time for a reply from those who had been criticized on broadcasts from that station. The Court found that the First Amendment had to be limited by the reality that there are a finite number of broadcast frequencies (unlike the unlimited channels of communication available through newspapers). In such circumstances, the interests of the viewing and listening public take precedence over the interests of the station owners and licensees. An attempt to codify the rule by congressional enactment was vetoed by President Ronald Reagan, and the FCC repealed the rule in 1987. Richard L. Wilson

592 / Reed v. Reed

The Cases

Reed v. Reed Citation: 404 U.S. 71 Date: November 22, 1971 Issue: Sex discrimination Relevant amendments: Fifth, Fourteenth Significance: A landmark case marking the first time that the Supreme Court applied the equal protection clause of the Fourteenth Amendment to strike down a statute because of gender discrimination. When Richard Reed died, both of his separated parents, Cecil Reed and Sally Reed, petitioned the probate court to administer the estate. The Idaho code required the court to give mandatory preference to the father, without any consideration of the relative capabilities of the applicants. Sally Reed argued that the mandatory preference was unconstitutional. The Supreme Court, by a 7-0 vote, agreed with her contention. Writing for the Court, Chief Justice Warren E. Burger insisted that any classifications of people must not be arbitrary and must have “a fair and substantial relation to the object of the legislation.” Because there was no rational basis to think that men were always more qualified than women to administer wills, the probate judge must hold a hearing to determine the relative merits of the two petitioners. Burger refused to consider whether sex might be a suspect classification, and his endorsement of the rational basis test allowed states considerable discretion in making gender distinctions. In later cases, including Craig v. Boren (1976), the Court adopted a more demanding test requiring a heightened level of scrutiny. Thomas T. Lewis

Regents of the University of California v. Bakke Citation: 438 U.S. 265 Date: June 28, 1978 Issues: Affirmative action in education; inverse incorporation Relevant amendments: Fifth, Fourteenth

The Cases

Regents of the University of California v. Bakke / 593

Significance: The Supreme Court held that educational institutions may not use rigid quotas in their admissions policies but may take race into account in order to increase minority enrollment. By the 1970’s many colleges and graduate schools were using affirmative action programs as part of admission policies, usually granting preferences to members of disadvantaged minority groups in order to increase their statistical representation. The medical school of the University of California at Davis instituted a program that reserved sixteen out of one hundred openings for minority students. Alan Bakke, a white male, was denied admission, even though his grades and test scores were significantly higher than those of most students who were admitted under the set-aside program. Bakke claimed that the policy violated both the Fourteenth Amendment and the Civil Rights Law of 1964. The university was unable to certify that Bakke would not have been admitted without the special admissions policy. When the controversial case was appealed to the Supreme Court, it was accompanied by fifty-eight amicus curiae briefs. In Bakke, a divided Court made two rulings. By a 5-4 vote, the Court struck down the university’s dual system of admissions, which meant that Bakke was accepted into the medical school. In another 5-4 vote, the Court declared that schools could take race into account as one among several factors promoting diversity. Four justices insisted that the 1964 statute prohibited all racial preferences, and four justices found no constitutional or statutory violation in set-aside programs for disadvantaged minorities. Because Justice Lewis F. Powell, Jr., voted with the majority in both rulings, he delivered the controlling opinion in the case. Powell emphasized that each applicant should have the “right to individualized consideration without regard to race.” He did not speak for a majority, however, when he advocated use of the compelling state interest test for deciding which racial preferences were permissible. The Bakke case did not provide much guidance on the affirmative action issue. Because of the variety of opinions in the case, it was unclear which level of judicial scrutiny should be used in evaluating programs, and the majority ruling did not explicitly prohibit the use of statistical goals and timetables, which were similar to quotas in result. In the late 1990’s there was a strong reaction against the use of racial and gender preferences, and the Court in Adarand Constructors v. Peña (1995) held that all preferences must be justified according to the compelling state interest test. Thomas T. Lewis

594 / Reno v. American Civil Liberties Union

The Cases

Reno v. American Civil Liberties Union Citation: 117 S.Ct. 2329 Date: June 26, 1997 Issue: Freedom of speech Relevant amendment: First Significance: The Supreme Court struck down the Communications Decency Act of 1996, which had made it a felony to display “obscene or indecent” material over the Internet in ways that might make it available to minors. After 1957 the Supreme Court often held that the First Amendment protected indecent materials but not obscene materials. Speaking for a 7-2 majority, Justice John Paul Stevens emphasized that the Communications Decency Act of 1996 did not adequately define obscenity and that it did not define indecency at all. Therefore, people using the Internet had no adequate notice of what specific communications were prohibited. The law’s definition of obscenity, moreover, went beyond the Court’s standards in Miller v. California (1973), and it did not guarantee protection for materials with serious political, scientific, or educational value. Although he recognized the government’s legitimate interest in protecting children from inappropriate expression, Stevens wrote that this objective did not justify limiting the access of adults to only materials that are appropriate for children. The two dissenters would have sustained those portions of the law that prohibited indecent communications from an adult to one or more minors. Thomas T. Lewis

Reynolds v. United States Citation: 98 U.S. 145 Date: May 5, 1879 Issues: Freedom of religion; marriage Relevant amendment: First Significance: Upholding a congressional prohibition on polygamy, the Supreme Court ruled that the First Amendment protects all religious be-

The Cases

Reynolds v. United States / 595

liefs but does not protect religiously motivated practices judged harmful to the public interest. George Reynolds, an active member of the Church of Jesus Christ of Latter-day Saints (Mormons) in the territory of Utah, was convicted of the crime of bigamy, contrary to a federal statute of 1862. All parties agreed that Mormon church doctrine required male members to practice plural marriage when circumstances permitted. The justices of the Supreme Court unanimously ruled that Reynolds’s conviction was not a violation of the free exercise clause of the First Amendment. In the official opinion, Chief Justice Morrison R. Waite made a distinction between beliefs and conduct. Although the U.S. Congress could place no restraint on religious opinions, it had the authority to punish “actions which were in violation of social duties or subversive of good order.” Waite pointed to the long-standing common-law prohibition of bigamy and quoted respected jurists who believed that the practice promoted despotic government and disrespect of women. Reynolds is considered a landmark because it was the Court’s first major pronouncement on the topic of the free exercise clause in relation to an unconventional religious practice. Waite’s formulation of a belief-conduct distinction was important for later cases, as was his reference to the Jeffersonian metaphor of “a wall of separation between church and state.” Although the opinion recognized that Congress could not prohibit a religious practice without a reasonable basis, it did not demand a very compelling justification. During this period, rights under the First Amendment were not applicable to the states, but Reynolds was in total conforChief Justice Morrison R. Waite’s decision in mity with state laws on marReynolds distinguished between beliefs and riage and religion. conduct. (Collection of the Supreme Court of the United States) Thomas T. Lewis

596 / Richmond Newspapers v. Virginia

The Cases

Richmond Newspapers v. Virginia Citation: 448 U.S. 555 Date: July 2, 1980 Issues: Freedom of the press; trial by jury Relevant amendment: First Significance: The Supreme Court ruled that the First Amendment protects the right of the public and the press to attend criminal trials even if the defendant objects. After New York Times Co. v. United States (1971) and Nebraska Press Association v. Stuart (1976), the broad rule was that the press could print any material it possessed without prior restraint, but the government and courts were entitled to keep materials secret if they could. The question remained whether the press had a right to have access to all trials. In Gannett Co. v. DePasquale (1979), a narrow majority on the Supreme Court held that the Sixth Amendment stipulated that only a defendant could insist on an open trial. In Richmond Newspapers, a local judge honored a defendant’s request to exclude the press. When the case reached the Court, however, it ruled that the First and Fourteenth Amendments required that the trial be open to the press and public, but for widely different reasons. Chief Justice Warren E. Burger wrote the opinion for the 7-1 majority, and Justices William J. Brennan, Jr., Thurgood Marshall, Potter Stewart, Byron R. White, and John Paul Stevens each wrote concurrences. Justice William H. Rehnquist wrote a dissent, and Justice Lewis F. Powell, Jr., did not participate. Richard L. Wilson

Richmond v. J. A. Croson Co. Citation: 488 U.S. 469 Date: January 23, 1989 Issue: Affirmative action Relevant amendments: Fifth, Fourteenth Significance: The Supreme Court dealt a serious blow to affirmative action programs when it held that state and local governments must justify

The Cases

Robel, United States v. / 597

racial preferences by the standard of a compelling governmental interest. In 1983 the city council of Richmond, Virginia, enacted an affirmative action requirement that the city’s prime contractors must award at least 30 percent of their subcontracts to minority-owned businesses. The J. A. Croson plumbing company sued the city, arguing that the set-aside requirement violated the equal protection clause of the Fourteenth Amendment. The city referred to Fullilove v. Klutznick (1980), which upheld a federal program that required a 10 percent set-aside for minority businesses. By a 6-3 majority, the Supreme Court struck down Richmond’s plan. Sandra Day O’Connor’s majority opinion noted that the plan denied particular people “the opportunity to compete for a fixed percentage of public contracts based solely upon their race.” She instructed the lower courts to judge such preferences, regardless of whether they involved quotas, by the demanding standard of strict scrutiny. This meant that an affirmative action plan must be narrowly tailored to satisfy a compelling governmental interest and that it must be justified by a showing of past discrimination, not just a generalized assertion of societal discrimination. The Court expanded the Croson ruling to apply to federal legislation in Adarand Constructors v. Peña (1995). Thomas T. Lewis

Robel, United States v. Citation: 389 U.S. 258 Date: December 11, 1967 Issues: Freedom of speech; freedom of association Relevant amendment: First Significance: The Supreme Court, in a rare move, struck a congressional enactment for violating the First Amendment. The 1950 Subversive Activities Control Act required members of allegedly subversive organizations, such as the Communist Party, to register with the Subversive Activities Control Board. Communist Party member Robel was indicted for working at a shipyard involved in the defense industry. By a 6-2 vote, the Supreme Court overturned Robel’s conviction

598 / Roberts v. United States Jaycees

The Cases

The Warren Court around the time of its Robel decision. Its members (clockwise from upper left): Abe Fortas, Potter Stewart, Bryon R. White, Thurgood Marshall, William J. Brennan, Jr., William O. Douglas, Earl Warren, Hugo L. Black, and John Marshall Harlan II. (Collection of the Supreme Court of the United States)

and a section of the act. The Court argued that because the act made no distinction between active and passive members of allegedly subversive organizations, people could be found guilty by association. Chief Justice Earl Warren, in the opinion for the Court, found that the statute was overbroad in the activities it prohibited. This decision did not directly overturn Communist Party v. Subversive Activities Control Board (1961), but its practical effect was to render the board a nullity. Justices Byron R. White and John Marshall Harlan dissented. Justice Thurgood Marshall did not participate. Richard L. Wilson

Roberts v. United States Jaycees Citation: 468 U.S. 609 Date: July 3, 1984 Issues: Sex discrimination; freedom of association Relevant amendment: First

The Cases

Robinson v. California / 599

Significance: Jaycees was a landmark Supreme Court decision that held that the state’s interest in combating sex discrimination was sufficiently compelling to justify application of an antidiscrimination statute to some private organizations. The Minnesota Human Rights Act prohibited sex discrimination in a place of public accommodation. The state’s enforcement agency applied the statute to the Jaycees, a private service club that restricted membership to men. The Jaycees brought a lawsuit, claiming that requiring the organization to accept women as members violated its right of free association guaranteed by the First and Fourteenth Amendments. By a 7-0 vote, the Supreme Court rejected the claim. Writing for a majority, Justice William J. Brennan, Jr., recognized constitutional protection for two varieties of freedom of association: the right to choose “intimate human relationships” and the right to engage in expressive activities. Brennan noted that the Jaycees was “neither small nor selective,” and that the presence of women in the organization would require no change in its announced creed. Such a small limit on the free association rights of the Jaycees was justified by the state’s interest in eradicating discrimination. In a more narrow concurrence, Justice Sandra Day O’Connor argued that the Jaycees operated more like a commercial organization than a private club. Subsequent to the Jaycees decision, the Court ruled that public accommodation laws apply to many other private organizations. In New York State Club Association v. City of New York (1988), for instance, the Court held that certain all-male social clubs must admit women. However, in the case of Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston (1995), the Court held that the principle of free association permitted a private group to exclude a gay rights group from participating in its annual St. Patrick’s Day parade. Thomas T. Lewis

Robinson v. California Citation: 370 U.S. 660 Date: June 25, 1962 Issue: Cruel and unusual punishment Relevant amendment: Eighth

600 / Rochin v. California

The Cases

Significance: The Supreme Court applied the Eighth Amendment’s cruel and unusual punishment clause to the states through incorporation via the Fourteenth Amendment. Justice Potter Stewart wrote the opinion for the 7-2 majority, striking down a California law that made it a crime to be a drug addict without any proof that the defendant bought, used, or possessed any drugs. Under the statute, the state could convict merely by showing tangential proof such as needle marks on the defendant’s arms. The Supreme Court reasoned that addiction was an illness rather than a crime and that even ninety days in jail amounted to cruel and unusual punishment. Justices Tom C. Clark and Byron R. White dissented, asserting that detention could be used to attempt to control addiction to narcotics. The scope of the decision was substantially narrowed six years later when a new majority found that chronic alcohol addiction could be punished with jail time in Powell v. Texas (1968). Richard L. Wilson

Rochin v. California Citation: 342 U.S. 165 Date: January 2, 1952 Issues: Due process, procedural; incorporation doctrine Relevant amendments: Fifth, Fourteenth Significance: Although the Supreme Court did not make the Fifth Amendment or the exclusionary rule binding on the states, it held that evidence obtained in a shocking and grossly unfair manner cannot be used in a criminal trial. Based on information that Antonio Rochin was selling drugs, the police entered his home without obtaining a search warrant. After observing Rochin swallow two capsules, the police rushed him to a hospital, where a doctor used an emetic solution and a stomach pump to force him to vomit the pills into a pail. The pills, which contained morphine, were used as evidence in his trial. He was found guilty and sentenced to sixty days in jail. By an 8-0 vote, the Supreme Court overturned Rochin’s conviction. Speaking for a majority, Justice Felix Frankfurter declared that breaking

The Cases

Roe v. Wade / 601

into the defendant’s house and then forcibly extracting his stomach’s content was “conduct that shocks the conscience.” Quoting Palko v. Connecticut (1937), Frankfurter interpreted the due process clause as protecting those personal immunities that “are implicit in the concept of ordered liberty.” In concurring opinions, Justices Hugo L. Black and William O. Douglas argued in favor of deciding the case on the basis of the Fifth Amendment, which should have been made binding on the states through the Fourteenth Amendment. Black criticized Frankfurter for using a subjective natural law approach. The Court finally ruled that the Fifth Amendment applied to the states in Malloy v. Hogan (1964), and it ruled that in Fourth Amendment cases, the exclusionary rule is binding on the states in Mapp v. Ohio (1961). Even though states are now required to respect most of the principles in the Bill of Rights, the subjective “shock the conscience” standard reappears from time to time in a variety of different contexts. Thomas T. Lewis

Roe v. Wade Citation: 410 U.S. 113 Date: January 22, 1973 Issue: Abortion Relevant amendments: Fifth, Ninth, Fourteenth Significance: The Supreme Court ruled that a woman has a constitutional right to terminate an unwanted pregnancy before the fetus acquires viability and that a fetus is not a person under the Fifth and Fourteenth Amendments. By the early 1970’s, a great deal of controversy had arisen about abortion laws. The majority of states permitted abortions only when necessary to save the life of the pregnant woman. Some sixteen states allowed abortions under other circumstances, such as pregnancies resulting from rape and incest. In 1970 three states enacted liberal laws that allowed some form of abortion on demand. As American culture placed greater emphasis on individual freedom, the number of illegal abortions appeared to be growing, often using primitive methods in unsanitary conditions. With the revitalized feminist movement, the right to terminate un-

602 / Roe v. Wade

The Cases

wanted pregnancies was increasingly defined as an issue of gender equality. The Supreme Court gradually accepted the theory of a constitutionally protected right to generic privacy, emphasizing personal choice in marriage, child rearing, and procreation. The Court significantly expanded privacy rights in Griswold v. Connecticut (1965), which struck down a state law prohibiting the sale of contraceptives. The Griswold majority located the right to privacy in three main places: the “penumbras” of the Bill of Rights, the substantive “liberty” protected by the Fifth and Fourteenth Amendments, and the unenumerated rights of the Ninth Amendment. In Eisenstadt v. Baird (1972), the Court explicitly recognized that the right to privacy included an individual’s reproductive freedom. Although Eisenstadt specifically dealt with the right to use contraceptives, the language in the majority’s opinion appeared broad enough to subsume the abortion issue. Two Cases. In 1969 Norma McCorvey, an unmarried pregnant woman living in Texas, was unhappy to discover that the state criminalized abortions except when necessary to protect the life of the woman. She consulted two attorneys, Sarah Weddington and Linda Coffee, who were young and energetic feminists strongly dedicated to the cause of reproductive freedom for women. McCorvey, using the pseudonym Jane Roe, filed a class-action suit in federal court against Dallas district attorney Henry Wade, asking for an injunction to stop enforcement of the abortion law. A three-judge district court declared the Texas law unconstitutional but refused to issue an injunction because the constitutional issue remained unresolved. Weddington and Coffee, assisted by the American Civil Liberties Union (ACLU), appealed the case directly to the Supreme Court in 1971. That same year, Doe v. Bolton, challenging Georgia’s less restrictive abortion law, was also appealed to the Court. When the Court agreed to hear the two abortion cases, numerous prochoice and pro-life organizations presented amici curiae briefs. On December 13, 1971, the Court, composed of only seven justices, heard oral arguments on the cases. At conference three days later, at least four of the justices agreed that the laws of Texas and Georgia were unconstitutional, but there was almost no agreement about the constitutional rationale or about whether the woman’s right to an abortion would apply to the entire period of the pregnancy. The chief justice assigned the cases to Justice Harry A. Blackmun. Six months later, Blackmun circulated a first draft

The Cases

Roe v. Wade / 603

that ruled only on the narrow issue of vagueness. For several reasons, the cases were reargued before a nine-member Court on October 11, 1972. A Right to Privacy. By a 7-2 vote, the Court struck down the abortion laws of Texas and Georgia. Speaking for the majority, Justice Blackmun declared that a right to privacy, which derives primarily from the “concept of personal liberty” in the due process clause of the Fourteenth Amendment, “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Her right to an abortion, although a fundamental right, is not unqualified and must be considered in relation to the state’s important and legitimate interests in protecting maternal health and the “potentiality of human life.” Blackmun’s opinion outlined abortion rights in three trimesters. During the first three months of pregnancy, the abortion decision is entirely a private decision left up to the woman. After the end of the first trimester, the state may regulate procedures “in ways that are reasonably related to maternal health.” After the second trimester, as the fetus acquires the ability to survive independently of its mother, the state may proscribe abortions except when necessary “for the preservation of the life or health of the mother.” Presenting a survey of the historical record, Blackmun concluded that abortion laws at common law and throughout the nineteenth century had been less restrictive than those in effect in 1973. Finally, he concluded that there was no evidence that the word “person” in the Constitution referred to prenatal life. Justices Byron R. White and William H. Rehnquist dissented. White criticized the Court for giving greater value to the “convenience” of the pregnant woman than to “the continued existence and development of the life or potential life that she carries.” Finding the constitutional issues ambiguous, he wrote that the matter “should be left with the people and to the political processes the people have devised to govern themselves.” Justice Rehnquist wanted to evaluate abortion laws according to the rational basis test rather than the stricter compelling interest test. Observing that the majority of states had restrictive abortion laws on the books when the Fourteenth Amendment was ratified, he could find no evidence that the right to an abortion was “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Roe was one of the most controversial decisions in the history of the Court. As the Court became more conservative in the 1980’s, a bare majority of the justices continued to uphold the woman’s right to an abor-

604 / Romer v. Evans

The Cases

tion before viability, but they increasingly allowed state and local governments to place restrictions on abortion practices. In Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), a highly fragmented Court abandoned the trimester framework and accepted an “undue burden” standard for determining whether regulations were acceptable. Thomas T. Lewis

Romer v. Evans Citation: 116 S.Ct. 1620 Date: May 20, 1996 Issue: Gay and lesbian rights Relevant amendments: Fifth, Fourteenth Significance: The Supreme Court struck down the amendment to the Colorado state constitution that prohibited state officials from acting to protect homosexuals from discrimination. Justice Anthony M. Kennedy wrote the opinion for the 6-3 majority, overturning a Colorado constitutional amendment approved by the voters that prohibited any executive, legislative, or judicial action designed to protect homosexuals from discrimination. Kennedy found that such a broad and undifferentiated disability placed on a single named group clearly violated the Fourteenth Amendment’s equal protection clause. Further, the amendment lacked rationality in its connection to legitimate government interests. Beyond these critical concerns, Kennedy attacked the amendment on many very fundamental grounds for multiple violations of the Constitution and the most elementary considerations of the rule of law. Nonetheless, Justice Antonin Scalia dissented and was joined by Justice Clarence Thomas and Chief Justice William H. Rehnquist. Richard L. Wilson

Ross, United States v. Citation: 456 U.S. 798 Date: June 1, 1982 Issues: Fourth Amendment; automobile searches Relevant amendment: Fourth

The Cases

Ross, United States v. / 605

Significance: Through this decision, the Supreme Court broadly increased the right of police officers to search automobiles without a search warrant as long as they have probable cause. In Robbins v. California (1981), the Supreme Court ruled that police officers could conduct a warrantless search of a package in an automobile only if the contents of the package were in plain view. However, in Ross, police conducting a search of a car trunk had opened a closed paper bag to discover that it contained heroin. Later, they also found a zippered pouch that contained cash in the trunk. A lower court denied the defendant’s motion to suppress the evidence, and he was convicted of possessing heroin with intent to sell. By a 6-3 vote, the Supreme Court largely abandoned Robbins and ruled that packages in automobiles could be searched without a warrant if the police had probable cause—the same standard a magistrate should use in issuing a warrant. Justice Thurgood Marshall dissented, arguing that a police officer was not trained as a magistrate and should not be given the same power as a magistrate to determine probable cause. Justice William J. Brennan, Jr., joined in the dissent, and Justice Byron R. White agreed with it. Richard L. Wilson

Justice Thurgood Marshall dissented in Ross, arguing that police officers are not trained as magistrates and should not have the same powers as magistrates to determine probable cause. (Collection of the Supreme Court of the United States)

606 / Rostker v. Goldberg

The Cases

Rostker v. Goldberg Citation: 453 U.S. 57 Date: June 25, 1981 Issue: Sex discrimination Relevant amendment: Fifth Significance: The Supreme Court found that the male-only draft registration law was constitutional. Although draft registration was discontinued after the Vietnam War, it was reinstated in 1980. With 150,000 women serving in the armed forces, Congress considered but rejected a proposal to require women as well as men to register. A district court found that the single-sex registration violated the requirement for equal protection in the due process clause in the Fifth Amendment. Bernard Rostker, director of the Selective Service System, appealed to the Supreme Court. By a 6-3 vote, the Court upheld the law. Justice William H. Rehnquist, writing for the Court, argued that men and women were not “similarly situated” in regard to the draft, because Congress had decided that women as a group were not eligible for combat. He further wrote that the standard of heightened scrutiny was satisfied in the case because the policy of male-only registration was closely related to the important goal of developing a pool of potential combat troops. In dissent, Justice Thurgood Marshall argued that the government should be required to show that registering women would substantially impede the goal of preparing for a draft of combat troops. All the justices appeared to assume that it was constitutional to restrict combat duty to men only. Thomas T. Lewis

Roth v. United States Citation: 354 U.S. 476 Date: June 24, 1957 Issue: Obscenity Relevant amendment: First

The Cases

Roth v. United States / 607

Significance: Ruling that obscene material is not protected by the First Amendment, the Court defined obscenity narrowly and put strict limits on the kinds of obscenity that might be proscribed by law Samuel Roth conducted a business in New York in the publishing and sale of books, magazines, and photographs. A federal statute made it a crime to send “obscene, lewd, lascivious, or filthy” materials or advertisements through the U.S. mail, and Roth was found guilty in district court for violating four counts of the statute. Contemporary with Roth’s conviction, David Alberts was convicted in California of advertising obscenity in violation of the state’s penal code. When Roth and Alberts each petitioned the U.S. Supreme Court for review, the Court accepted both cases and consolidated them into one decision. The major issue was whether the federal and state statutes, as interpreted, were consistent with the First Amendment’s freedom of speech and press. Historically, both the federal government and the states had long criminalized most forms of pornography, and in numerous cases the Court had recognized such laws as a reasonable means to promote the state’s legitimate interest in “decency.” Between 1842 and 1956 the U.S. Congress had enacted twenty antiobscenity laws, and at least six times the Supreme Court had approved prosecutions under these laws. Some American courts continued to follow Regina v. Hicklin (1868), which looked at the effects of isolated passages on the most susceptible persons in society. Roth and Alberts had been convicted under a less restrictive standard, endorsed by Judge Learned Hand and many liberals, that considered the work as a whole and its impact on the average adult. Still, given the precedents, few observers considered that the Supreme Court would strike down antiobscenity statutes. The Court ruled 6 to 3 to uphold Roth’s federal conviction and 7 to 2 to uphold Alberts’s state convictions. Writing for the majority, Justice William Brennan summarized the Anglo-American tradition of proscribing obscenity, and he concluded that obscenity enjoyed no constitutional protection because it had been historically recognized as “utterly without redeeming social importance.” Making a distinction between sex and obscenity, Brennan rejected the Hicklin test as “unconstitutionally restrictive.” He endorsed the alternative test of “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest.”

608 / Rummel v. Estelle

The Cases

Two liberal members of the Court, Justices William O. Douglas and Hugo L. Black, dissented and argued that the First Amendment protected all forms of expression. One member of the Court, John Marshall Harlan II, distinguished between federal and state prosecution of obscenity, allowing the states greater power in the area. The Roth decision was a landmark case because the Court for the first time limited government’s prerogative to criminalize obscene material, and because it insisted on a narrow definition of obscenity. While allowing the continuation of antiobscenity laws, Roth recognized that all ideas were protected unless they were “utterly without redeeming social importance.” Equally important was the explicit rejection of the Hicklin test, so that subsequent prosecutions had to be based on the influence of a work in its entirety on an average person of the community. In post-Roth cases, the Court would continue to be divided over the definition and protection of obscenity, a controversy that culminated in the three-pronged compromise of Miller v. California (1973). Thomas T. Lewis

Rummel v. Estelle Citation: 445 U.S. 263 Date: March 18, 1980 Issue: Cruel and unusual punishment Relevant amendment: Eighth Significance: The Supreme Court held that sentencing a man to life imprisonment for three fraudulent offenses, involving a total of $229, did not violate the Eighth Amendment’s proscription against cruel and unusual punishments. In 1973 William Rummel was convicted of receiving $121 under false pretenses. Twice before, Rummel had been convicted of similar crimes. Texas had a recidivist statute that required a mandatory life sentence for a person’s third felony conviction. Writing for a 5-4 majority, Justice William H. Rehnquist insisted that the doctrine of Eighth Amendment proportionality applied only to cases involving the death penalty. He found that the Texas statute had two legitimate goals: to deter repeat offenders and to isolate recidivist offenders from society for as long as deemed necessary. Also, he noted that the statute allowed for the possibility of parole.

The Cases

Runyon v. McCrary / 609

In dissent, Justice Lewis F. Powell, Jr., argued that Weems v. United States (1910) and Robinson v. California (1962) should be interpreted as precedents for applying the principle of proportionality to noncapital cases. Powell later wrote the majority opinion in Solem v. Helm (1983), in which the Court used the disproportionate principle to overturn a sentence for life imprisonment, without possibility for parole, for three relatively minor nonviolent crimes. Thomas T. Lewis

Runyon v. McCrary Citation: 427 U.S. 160 Date: June 25, 1976 Issue: Race discrimination Relevant amendment: First Significance: The Supreme Court interpreted the Civil Rights Act of 1866 as prohibiting private nonreligious schools from discriminating on the basis of race. In Jones v. Alfred H. Mayer Co. (1968), the Supreme Court held that the 1866 Civil Rights Law outlawed private racial discrimination and that the law was valid under the Thirteenth Amendment. A key element of the law was its broad right-to-contract provision in Title XLII. Based on this provision, African American parents in Virginia brought suit against private commercial schools that had refused to admit their children. By a 7-2 vote, the Court ruled in favor of the plaintiffs and also held that forbidding segregation in the schools did not violate the white parents’ right to free association. Writing for the majority, Justice Potter Stewart conceded that parents have a First Amendment right “to send their children to educational institutions that promote the belief that racial discrimination is desirable” but stated that “it does not follow that the practice of excluding racial minorities from such institutions is also protected by the same principle.” Two justices dissented on the grounds that Jones had been wrongly decided. Although the Court greatly restricted Runyon’s scope in Patterson v. McLean Credit Union (1989), the Civil Rights Law of 1991 reinstated Runyon’s broad interpretation of Title XLII. Thomas T. Lewis

610 / Rust v. Sullivan

The Cases

Rust v. Sullivan Citation: 500 U.S. 173 Date: May 23, 1991 Issues: Abortion; freedom of speech Relevant amendment: First Significance: The Supreme Court upheld a “gag rule” that imposed restrictions on abortion counseling in federally funded birth control clinics. The Public Health Service Act of 1970 specified that no federal funds could be used to support abortion services as a form of family planning. In 1988 the Secretary of Health and Human Services issued three new regulations for the use of funds under the program: First, funded clinics were prohibited from recommending or encouraging abortions; second, clinics were prohibited from giving a pregnant woman any information about where to obtain an abortion; and third, clinics were required to provide pregnant women with a list of “providers that promote the welfare of the mother and the unborn child.” The clinics argued that the regulations were not authorized by Congress, that they violated the freedom of speech rights of the personnel in the clinics, and that they interfered with the right of a woman to obtain an abortion, as established under Roe v. Wade (1973). By a 5-4 vote, the Supreme Court upheld the regulations. Speaking for the majority, Chief Justice William H. Rehnquist wrote that “when the government appropriates public funds to establish a program it is entitled to define the limits of that program.” The government could make a value judgment favoring childbirth over abortion, and the First Amendment did not require it to subsidize all points of view. The gag rules did not require individuals to give up all abortion-related speech, but the rules only required that such speech must occur outside governmentfunded programs. The fact that the rules had a disproportionate effect on poor women was irrelevant. In regard to abortion rights, the government had no constitutional obligation to subsidize an activity merely because it is constitutionally protected. Finally, Rehnquist found that the 1988 regulations did not contradict the broad purposes of the relevant statute. The Rust decision demonstrated that the Court was increasingly willing to accept major restrictions on the right to abortions. In addition, Rehn-

The Cases

Schenck v. United States / 611

quist’s discussion of governmental conditions for the use of public funds was relevant to a large number of controversial programs. Thomas T. Lewis

Rutan v. Republican Party of Illinois Citation: 110 S.Ct. 2729 Date: January 16, 1990 Issues: Freedom of speech; patronage Relevant amendment: First Significance: The Supreme Court concluded that patronage hiring and firing of low-level government employees violates their free speech rights. An Illinois Republican governor issued an order prohibiting state hiring without his approval, which required adherence to Republican Party beliefs. By a 5-4 vote, the Supreme Court extended First Amendment protection to low-level government employees denied jobs or promotions through patronage politics. In his opinion for the Court, Justice William J. Brennan, Jr., followed the Court’s decisions in Elrod v. Burns (1976) and Branti v. Finkel et al. (1980). The Court was badly split, with Justice Antonin Scalia writing a dissent longer than the Court’s opinion defending traditional patronage politics for its party-enhancing characteristics. Scalia argued that Elrod and Branti should both be overturned and that a legislature—not the Court—should decide whether patronage had values that should be balanced against any loss of free speech that resulted from the patronage system. The Scalia dissent was joined by Justices Anthony M. Kennedy and Sandra Day O’Connor and Chief Justice William H. Rehnquist. Justice John Paul Stevens concurred with Brennan, giving a point-by-point rebuttal of Scalia’s arguments. Richard L. Wilson

Schenck v. United States Citation: 249 U.S. 47 Date: March 3, 1919 Issue: Freedom of speech Relevant amendment: First

612 / Scott v. Sandford

The Cases

Significance: In upholding the conviction of a man for discouraging people from enlisting in the service, the Supreme Court first used the clear and present danger test to determine whether speech could be restricted. Charles T. Schenck was convicted of violating the 1917 Espionage Act by discouraging enlistments in the armed forces, something that would not have resulted in a prosecution later. Because the key activity was the distribution of leaflets, Schenck protested that his conviction violated his freedom of expression rights under the First Amendment, and he attacked the constitutionality of the Espionage Act. The Supreme Court unanimously upheld his conviction. In the opinion for the Court, Justice Oliver Wendell Holmes said the leaflet posed a “clear and present danger” to the United States during wartime. It was the first use of this doctrine as grounds on which the government could restrain speech. Many scholars find it difficult to see how the Schenck leaflet constituted a clear and present danger to anyone. Nonetheless, the clear and present danger test was widely accepted. The test was sometimes abused by justices who said they were following the clear and present danger test when they were really departing from it, using a looser, much more restrictive bad tendency test against speech. The phrase’s key limitation is its vagueness, which can be interpreted to be quite intrusive on the free exercise of speech. What is clear to one person may be unclear to another, and what can be a present danger to one can seem quite remote to another. In his opinion, Holmes did state that Schenck’s activities in other times and places would have been protected and did clarify the meaning of his test in Abrams v. United States (1919) and dissent vigorously when others abused the test in later decisions. Richard L. Wilson

Scott v. Sandford Citation: 19 How. (60 U.S.) 393 Date: March 6-7, 1857 Issues: Slavery; citizenship Relevant amendment: Fifth Significance: The Supreme Court endorsed a substantive due process interpretation of the Fifth Amendment that prevented Congress from

The Cases

Scott v. Sandford / 613

excluding slavery from the territories. It also held that a person of African ancestry could not be a citizen of the United States. In the antebellum period, one of the burning political issues was whether slavery would be allowed to expand into the territories. Because the slave states were outnumbered in the House of Representatives, they wanted to keep a balance of power in the Senate, which would require that more slave states be added to the union. The new Republican Party, established in 1854, hoped to attack slavery by preventing its expansion. Dred Scott was a slave who had been taken from the slave state of Missouri to the free state of Illinois and then to the western part of Wisconsin territory, where slavery had been prohibited by the Missouri Compromise of 1820. Scott could have claimed his freedom while on free soil, but for some unknown reason, he did not do so. After returning to Missouri, Scott sued for his freedom. Although Missouri’s supreme court had earlier accepted residence on free soil as grounds for a claim to freedom, in this instance, the court rejected Scott’s claim. Because he was then under the control of John Sanford of New York, he sued Sanford (misspelled in the transcript) in federal court under a diversity jurisdiction. By a 7-2 vote, the Supreme Court decided against Scott. If this had been the Court’s only ruling, the Dred Scott case would have been relatively unimportant. Speaking for the majority, however, Chief Justice Roger Brooke Taney concentrated on the property rights of the slave owner, as

Contemporary magazine illustration of Dred Scott and his wife, Harriet. (Library of Congress)

614 / Scott v. Sandford

The Cases Roger Brooke Taney’s legacy as chief justice is permanently tainted by his notorious ruling in Scott that African Americans could never be American citizens. (Mathew Brady/Supreme Court of the United States, Office of the Curator)

guaranteed by the Fifth Amendment. He stated that in prohibiting a citizen from taking his property to a territory, Congress had abridged property rights without due process of law. Thus, a major part of the Missouri Compromise was unconstitutional. In addition, Taney made a distinction between national and state citizenship. He did not deny that people from Africa could be citizens of the states, but he insisted that they could never become a part of “We the People” of the U.S. Constitution. Even if Scott had been free, therefore, he would not be a citizen entitled to sue in federal court. Two justices, Benjamin R. Curtis and John McLean, wrote forceful dissenting opinions. Although Taney had hoped that the Dred Scott decision would calm the political waters, it instead intensified the passionate debate between defenders and opponents of slavery. The overturning of the Missouri Compromise infuriated Abraham Lincoln and other Republicans who had advocated congressional action to prevent the expansion of slavery into the territories. By polarizing the nation, Dred Scott helped set the stage for southern secession. The citizenship and the equal protection clauses of the Fourteenth Amendment were written in part to overturn Taney’s opinions in the case. Thomas T. Lewis

The Cases

Selective Draft Law Cases / 615

Selective Draft Law Cases Citation: 245 U.S. 366 Date: January 7, 1918 Issue: Conscription Relevant amendment: First Significance: The Supreme Court unanimously upheld the constitutionality of the Selective Service Act of 1917. Several persons convicted of draft evasion asserted that compulsory military conscription was inconsistent with both the Thirteenth Amendment’s prohibition against involuntary servitude and the religious clauses of the First Amendment. Speaking for the Supreme Court, Chief Justice Edward D. White responded that congressional authority for imposing the draft was firmly grounded in the authorization of Congress to declare war and “to raise and support armies.” Conscription was entirely consistent with Anglo-American traditions, and it was a necessary corollary to federal sovereignity and the power to wage war. White found no reason to conclude that the draft, which contained an exemption for conscientious objectors, infringed on any rights under the First Amendment. In addi-

In writing his majority opinion in the draft cases, Chief Justice Edward D. White found no conflict between military conscription and the First Amendment. (Collection of the Supreme Court of the United States)

616 / Shapiro v. Thompson

The Cases

tion, he wrote that the obligations of citizenship included the “supreme and noble duty of contributing to the defense of the rights and honor of the nation.” Although many people objected to White’s patriotic tone, the Court never overturned any of his rulings. Thomas T. Lewis

Shapiro v. Thompson Citation: 394 U.S. 618 Date: April 21, 1969 Issue: Right to travel Relevant amendments: Fifth, Fourteenth Significance: The Supreme Court struck down lengthy state residency requirements as a condition for receiving welfare benefits. The Supreme Court declared unconstitutional state statutes that set a one-year residency requirement for the receipt of welfare assistance. Justice William J. Brennan, Jr., writing for a six-member majority, stated that the one-year limit was too long and invidiously discriminated against recipients under the Fourteenth Amendment’s equal protection clause. He also justified the decision by holding that the statute limited the right to travel. Justice Potter Stewart concurred on separate grounds. Chief Justice Earl Warren and Justice Hugo L. Black dissented on the grounds that they could not see how the statute limited travel. Justice John Marshall Harlan II dissented, claiming that he could see no more than a limited and insubstantial limit on travel. Richard L. Wilson

Sherbert v. Verner Citation: 374 U.S. 398 Date: June 17, 1963 Issue: Freedom of religion Relevant amendment: First Significance: The Supreme Court required that government apply the “compelling state interest” standard to justify any policy that placed an indirect burden on a religious practice.

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Skinner v. Oklahoma / 617

Adell Sherbert, a member of the Seventh-day Adventist Church, was fired from her job in a textile mill because she refused to work on Saturdays, her Sabbath. The unemployment office of South Carolina turned down her claims for benefits because state policy did not accept religious conviction as a sufficient justification for not working. The state court, ruling in favor of the state, referred to Braunfeld v. Brown (1961), which had allowed Sunday-closing laws that indirectly disadvantaged Jewish merchants. The Supreme Court, by a 7-2 margin, found that South Carolina’s unemployment policy violated the religious exercise clause of the First Amendment. Justice William J. Brennan, Jr., wrote that when a state’s policy limited a fundamental right, the state must justify that burden with a compelling rationale. In addition, the state was required to consider alternative means for achieving its objectives and to adopt the policy that was the least restrictive of fundamental rights. In the Braunfeld case, the state had a compelling reason to provide a uniform day of rest, but South Carolina had no similar basis for refusing to modify its policy for unemployment compensation. Sherbert established a strong presumption in favor of protecting unconventional religious practices. The scope of this protection was limited in Employment Division, Department of Human Resources v. Smith (1990). Thomas T. Lewis

Skinner v. Oklahoma Citation: 316 U.S. 535 Date: June 1, 1942 Issue: Compulsory sterilization Relevant amendments: Fifth, Ninth, Fourteenth Significance: The Supreme Court ruled that states could not require sterilization because of criminality or moral turpitude. Oklahoma, as well as other states in 1942, authorized sterilization of “habitual criminals” after multiple convictions for enumerated crimes of “moral turpitude.” The Oklahoma law did not apply to those persons guilty of embezzlement and other white-collar crimes. The justification for the law, inspired by the eugenics movement, was the theory that some traits of criminality and mental defect were biologically inherited. Skin-

618 / Skinner v. Railway Labor Executives Association

The Cases

ner, who had been convicted once for stealing chickens and twice for armed robbery, was ordered to submit to a vasectomy. By a 9-0 vote, the Supreme Court ruled that the law was unconstitutional, but two justices disagreed with the majority’s constitutional reasoning in the decision. Speaking for the majority, Justice William O. Douglas found that the law violated the equal protection clause of the Fourteenth Amendment. The state had presented no evidence that the tendency to engage in larceny was more likely to be inheritable than the tendency to commit embezzlement. Although Douglas did not base the decision on substantive due process, he nevertheless emphasized that the liberty of procreation was “one of the basic civil rights of man.” For this reason, Skinner helped prepare the foundation for a later constitutional right of privacy. Thomas T. Lewis

Skinner v. Railway Labor Executives Association Citation: 489 U.S. 602 Date: March 21, 1989 Issue: Search and seizure Relevant amendment: Fourth Significance: The Supreme Court held that federal regulations requiring drug testing of railroad employees involved in train accidents did not violate the Fourth Amendment. The Federal Railroad Administration, under its statutory authority to set safety standards, required employees to take a breath or urine test if they were involved in a serious train accident or if they violated safety rules. A court of appeals ruled that the tests could not be required without individualized suspicion. Writing for a 7-2 majority, however, Justice Anthony M. Kennedy concluded that mandatory drug tests were reasonable in view of the government’s interest in safe transportation. It was not practical to require a warrant because of the speed at which evidence of drug abuse is absorbed by the body. A requirement of suspicion, moreover, could place the traveling public at risk because an employee’s performance could be impaired long before there was enough evidence to establish suspicion.

The Cases

Slaughterhouse Cases / 619

The same day it issued Skinner, the Supreme Court also announced its approval of drug testing for customs inspectors in National Treasury Employees Union v. Von Raab (1989). Later, in Vernonia School District v. Acton (1995), the Court upheld random drug testing for students who participate in interscholastic sports. In Chandler v. Miller (1997), however, the Court invalidated a Georgia policy requiring all political candidates to submit to drug testing. Thomas T. Lewis

Slaughterhouse Cases Citation: 83 U.S. 36 Date: April 14, 1873 Issues: Privileges and immunities; incorporation doctrine Relevant amendments: First through Eighth, Fourteenth Significance: The Supreme Court made an extremely narrow interpretation of the privileges and immunities clause (P and I clause) of the Fourteenth Amendment, with the result that none of the first eight amendments have been applied to the states by way of that clause. The Slaughterhouse Cases combined three suits challenging a Louisiana law that granted a single company the exclusive right to butcher animals in New Orleans. Although the legislature tried to defend the law as a rational means of promoting sanitation, it appeared to provide a monopoly to a small group of wealthy individuals with powerful political connections. Hundreds of New Orleans butchers, operating as small businesses, were put out of work as a result of the monopolistic legislation. Represented by former U.S. justice John A. Campbell, the butchers took their case to the state courts. Among other arguments, Campbell maintained that the privileges and immunities clause of the Fourteenth Amendment protected the right of American citizens to labor freely in an honest profession. After losing in the state’s highest court, Campbell appealed the cases to the U.S. Supreme Court. The Slaughterhouse Cases presented the Court with its first important opportunity to explore the meanings of the privileges and immunities clause, which, according to some of its framers, guaranteed the fundamental rights of citizenship, including those listed in the Bill of Rights.

620 / Slaughterhouse Cases

The Cases

John A. Campbell, a southerner who had resigned from the Supreme Court at the start of the Civil War, represented the butchers in the Slaughterhouse Cases. (Collection of the Supreme Court of the United States)

The Court, by a 5-4 margin, rejected Campbell’s arguments and interpreted the Fourteenth Amendment very narrowly. Writing the majority opinion, Justice Samuel Miller held that the only real purpose of the amendment was to guarantee that African Americans would have the same civil rights as white Americans. He drew a distinction between the rights of state citizenship and those of national citizenship, with the second category reduced to a very small number. The new amendment, Miller explained, had not made any basic changes in American federalism, and it did not make “this court a perpetual censor upon all legislation of the states.” In addition to not protecting economic rights, the Slaughterhouse decision meant that the privileges and immunities clause did not authorize the federal courts to apply the Bill of Rights to the state governments. Years later, the Supreme Court would broadly interpret the due process clause of the Fourteenth Amendment as a means of protecting the

The Cases

Smyth v. Ames / 621

kinds of economic liberties that the Louisiana butchers had asserted, and it would also use the due process clause to apply most of the Bill of Rights to the states. Although the Slaughterhouse ruling has never been formally overturned, the Court in Saenz v. Roe (1999) breathed new life into the privileges and immunities clause when it held that the clause protected a right to interstate travel and migration. Thomas T. Lewis

Smyth v. Ames Citation: 169 U.S. 466 Date: March 7, 1898 Issue: Regulation of business Relevant amendments: Fifth, Fourteenth Significance: The Supreme Court ruled that a state law setting unreasonably low rates for certain businesses violated the Fourteenth Amendment, and it prescribed a complex method for determining reasonable rates. During the 1890’s the Supreme Court overruled a number of state laws regulating railroads and utilities. Among other things, it held that regulated businesses were constitutionally entitled to charge a reasonable rate and that the determination of reasonableness was a judiciary question. In Smyth v. Ames, the Court unanimously agreed that the low railroad charges set by the Nebraska legislature amounted to a deprivation of property without due process of law. In addition, the Court held that a regulated business was entitled to a “fair return” on its current value and even prescribed a specific formula to ascertain the value. Critics argued that the Court’s reasoning was illogical because the value of a business was determined in part by the rates it charged. Reflecting the Court’s commitment to property rights during the late nineteenth century, the Smyth decision was based on a substantive due process reading of the Fourteenth Amendment. The Court finally abandoned Smyth’s fair-value standard for calculating charges in Federal Power Commission v. Hope Natural Gas Co. (1944). Thomas T. Lewis

622 / Solem v. Helm

The Cases

Solem v. Helm Citation: 463 U.S. 277 Date: June 28, 1983 Issue: Cruel and unusual punishment Relevant amendment: Eighth Significance: The Supreme Court held that the Eighth Amendment’s proscription of cruel and unusual punishment prohibited disproportionately severe penalties in noncapital cases. When Jerry Helm was convicted of writing a bad check, it was his seventh felony conviction in South Dakota. All the offenses had been relatively minor, nonviolent crimes against property. Under the state’s habitual offender statute, however, a person convicted of four felonies could be given the maximum penalty for a class-one felony. Helm was sentenced to life imprisonment without possibility of parole. In Rummel v. Estelle (1980), the Supreme Court had voted five to four to allow Texas to impose a penalty of life imprisonment, with the opportunity for parole, for a

In his majority opinion for Solem v. Helm, Justice Lewis F. Powell, Jr., argued that the term “cruel and unusual” referred to more than physically barbaric practices. (Library of Congress)

The Cases

Stanford v. Kentucky / 623

man who had been convicted of three separate theft offenses that totaled $289. Justice Lewis F. Powell, Jr., dissented in that case. By a 5-4 vote, the Court overturned Helm’s sentence. Powell, in the majority opinion, argued that the term “cruel and unusual” referred to more than barbaric practices, and he insisted that the principle of proportionality applied to felony prison sentences. Spending one’s life in prison was out of proportion to the commission of several relatively minor crimes, and it was also disproportionate in the sense that it was harsher than punishments often given to people for more serious crimes, such as rape and murder. In Harmelin v. Michigan (1991), nevertheless, the Court voted five to four to uphold a life sentence, without possibility of parole, imposed on an individual for possessing 772 grams of cocaine. Thomas T. Lewis

Stanford v. Kentucky Citation: 492 U.S. 391 Date: June 26, 1989 Issues: Capital punishment; juvenile justice Relevant amendment: Eighth Significance: The Supreme Court upheld executions of juveniles who committed murder. Justice Antonin Scalia wrote the opinion for the 5-4 majority sustaining the execution of persons who were juveniles over the age of sixteen at the time they committed the capital offense. Scalia reviewed the practices of capital punishment in the United States at the time of the adoption of the Bill of Rights. He found a large number of executions of those under eighteen and a significant number of those under seventeen. Scalia argued that contemporary standards of decency still allowed the execution of juveniles in most states, at least above age sixteen. Without directly setting a minimum age, the Supreme Court implied that it might be unconstitutional to impose a death penalty on those under sixteen at the time of the offense. Justices William J. Brennan, Jr., Harry A. Blackmun, Thurgood Marshall, and John Paul Stevens dissented, arguing that contemporary standards of decency prohibit the death penalty for juveniles when all factors from the states are taken into account. Richard L. Wilson

624 / Stanley v. Georgia

The Cases

Stanley v. Georgia Citation: 394 U.S. 557 Date: April 7, 1969 Issue: Obscenity Relevant amendment: First Significance: The Supreme Court broadly declared that adults have the right to possess pornographic materials in the privacy of their own homes. The Supreme Court unanimously decided that a state could not convict adults for the mere possession of legally obscene materials in their own homes. In part, Thurgood Marshall’s opinion rests on the Fourth Amendment protection of the home from search and seizure; in other parts, it relies on the First Amendment protection of freedom of expression. Still other parts of the opinion seem to rely on an expanded right of privacy, but this last conclusion was undercut by the Court’s later decision in Bowers v. Hardwick (1986), which allowed the state to regulate private sexual behavior. After Roth v. United States (1957), the Court’s rulings on obscenity had followed a tortuous path. For a time, some thought Stanley might represent a clear unanimous conclusion on the part of the Court on the question of possession of pornography in one’s home. However, Justice Byron R. White, writing for the majority in Osborne v. Ohio (1990), banned the mere possession of child pornography in the home and cautioned that Stanley should not be read too broadly. Richard L. Wilson

Steward Machine Co. v. Davis Citation: 301 U.S. 548 Date: May 24, 1937 Issue: Taxing and spending clause Relevant amendment: Tenth Significance: The Supreme Court upheld the portion of the 1935 Social Security Act that established unemployment compensation.

The Cases

Stone v. Powell / 625

Justice Benjamin N. Cardozo, a believer in selective incorporation, wrote the majority opinion in Steward Machine. (Collection of the Supreme Court of the United States)

Justice Benjamin N. Cardozo wrote the opinion for the 5-4 majority sustaining the 1935 Social Security Act’s provision for unemployment compensation. The Supreme Court clearly departed from its earlier decision in United States v. Butler (1936), which was decided before Justice Owen J. Roberts switched to a more liberal position. Justices Pierce Butler, James C. McReynolds, George Sutherland, and Willis Van Devanter dissented, asserting that the Tenth Amendment limited the federal government’s taxing and spending power—a position clearly rejected by the Court’s new majority. Richard L. Wilson

Stone v. Powell Citation: 428 U.S. 465 Date: July 6, 1976 Issues: Habeas corpus; Fourth Amendment Relevant amendment: Fourth

626 / Strauder v. West Virginia

The Cases

Significance: The Supreme Court limited the habeas corpus appeals that could be made to it. Justice Lewis F. Powell, Jr., wrote the opinion for the 6-3 majority. Congress had allowed state convicts to petition for a writ of habeas corpus challenging their state convictions, despite the general legal presumption that a matter once decided cannot be relitigated. In Brown v. Allen (1953), the Supreme Court had ruled that a state convict could obtain a federal court hearing on any federal constitutional issue. Powell’s opinion reinterpreted Brown v. Allen and held that it did not apply to Fourth Amendment (search and seizure) questions if the state had provided a full, fair hearing on the issue. Justice William J. Brennan, Jr., joined by Justice Thurgood Marshall, dissented as did Justice Byron R. White separately. Critics’ fears that habeas corpus would be placed in jeopardy because of this decision were not realized because this ruling was not expanded. Richard L. Wilson

Strauder v. West Virginia Citation: 100 U.S. 303 Date: March 1, 1880 Issue: Jury composition Relevant amendments: Sixth, Fourteenth Significance: The Supreme Court declared that exclusion of African Americans from juries was a violation of the equal protection clause of the Fourteenth Amendment. During the late nineteenth century, West Virginia had a statute that explicitly limited jury service to “white male persons.” Strauder, a black man convicted of murder, claimed that he had not received a fair trial because of the statute. The Supreme Court agreed. Writing for a 7-2 majority, Justice William Strong explained that such a law constituted precisely the kind of discrimination that the Fourteenth Amendment was designed to prevent. Also in 1880, the Court decided three other important cases dealing with racial exclusion from juries. In Neal v. Delaware and Ex parte Virginia, it held that even if the state’s laws did not exclude blacks, the actual practice of exclusion was a denial of equal protection. In Virginia v.

The Cases

Justice William Strong defended the right of African Americans to serve on juries in Strauder v. West Virginia. (Collection of the Supreme Court of the United States)

Stromberg v. California / 627

Rives, however, the Court ruled that the mere absence of African Americans from juries was not in itself a violation of the Fourteenth Amendment. In effect, Rives allowed local officials to use their discretionary authority to exclude blacks from juries. Although Strauder, Ex Parte Virginia, and Neal had limited impact during the Jim Crow era, they nevertheless helped prepare a constitutional foundation for the Civil Rights movement of the mid-twentieth century. Thomas T. Lewis

Stromberg v. California Citation: 283 U.S. 359 Date: May 18, 1931 Issue: Symbolic speech Relevant amendment: First Significance: The Supreme Court first used the Fourteenth Amendment’s incorporation of the First Amendment to strike a state law limiting freedom of speech. During the Red Scare (anticommunist hysteria) after World War I, California banned the display of a red flag but did not enforce the law until a right-wing group, Better America Federation, persuaded a local sheriff to raid a working-class children’s youth camp where they found instructor Yetta Stromberg’s red flag. Chief Justice Charles Evans Hughes, who wrote the landmark opinion for the 7-2 majority, stated that citizens might have had many uses for a red flag and that the California statute was simply too vague to pass constitutional muster. The statute could, he argued, be used to suppress a wide range of constitutionally protected opposition to those in power. The Supreme Court’s ruling was the first to

628 / Talton v. Mayes

The Cases

extend the Fourteenth Amendment to protect a First Amendment right (symbolic speech) from state action. Justices Pierce Butler and James C. McReynolds dissented. Richard L. Wilson

Talton v. Mayes Citation: 163 U.S. 376 Date: May 18, 1896 Issue: Native American sovereignty Relevant amendment: Fifth Significance: The Supreme Court held that the rights and liberties enumerated in the U.S. Constitution were not applicable to the tribal governments and courts. A Native American convicted of murder in a Cherokee nation court maintained that his trial was unfair because the indicting grand jury had only five members, contrary to the Fifth Amendment. However, by an 8-1 vote, the Supreme Court found that the Fifth Amendment did not apply because the Cherokee nation retained its sovereignty. In the opinion for the Court, Chief Justice Edward D. White held that the U.S. Bill of Rights did not apply to Native Americans in tribal courts. Federal law would not apply unless tribal law conflicted with a specific national law applied to Native American tribal governments. Justice John Marshall Harlan dissented. Richard L. Wilson

Taylor v. Louisiana Citation: 419 U.S. 522 Date: January 21, 1975 Issue: Trial by jury Relevant amendment: Sixth Significance: The Supreme Court held that women could not be excluded from juries, even indirectly. A Louisiana man charged with rape argued that the state’s volunteer jury service provision violated his Sixth Amendment right to a jury that repre-

The Cases

Tennessee v. Garner / 629

sented a cross section of the local population. The volunteer method often created juries that were composed mainly of men. Justice Byron R. White wrote the opinion for the 8-1 majority, striking Louisiana laws that formed juries by a volunteer method. Departing from Hoyt v. Florida (1961), the Supreme Court found that the Sixth Amendment was violated by juries on which very few women (less than 15 percent of all jurors) were seated if the states excused or avoided seating women in various ways. Hoyt was not directly overturned because it was not decided on Sixth Amendment grounds. Chief Justice Warren E. Burger concurred, and Justice William H. Rehnquist dissented. Richard L. Wilson

Tennessee v. Garner Citation: 471 U.S. 1 Date: March 27, 1985 Issue: Use of force by the police Relevant amendment: Fourth Significance: The Supreme Court held that a police officer may use deadly force only when there is probable cause to believe that the suspect poses an immediate threat of death or physical harm to the officer or to others. In 1974 a fifteen-year-old boy, Edward Garner, broke a window to enter an unoccupied house in Memphis, Tennessee. Two officers intercepted the suspect in the back of the house. By shining a flashlight, the officers were “reasonably sure” that the suspect was young and unarmed. When he was about to escape over a fence, one of the officers shot him in the back. The officer had acted in accordance with Tennessee’s fleeing felon statute, which authorized all means necessary to stop a suspected felon. The decedent’s father, nevertheless, won a damage award against the officers and the city. By a 6-3 vote, the Supreme Court struck down the relevant portion of the Tennessee law. In the majority opinion, Justice Byron R. White wrote that apprehending a suspect “is a seizure subject to the reasonableness requirement of the Fourth Amendment.” The majority found no reasonable justification for officers to use deadly force against a suspect who did not appear to be armed and dangerous. After the Garner decision was is-

630 / Terminiello v. Chicago

The Cases

sued, half of the states had laws that were unconstitutional because of a lack of restraint on the use of force while attempting to arrest a nondangerous suspect. Thomas T. Lewis

Terminiello v. Chicago Citation: 337 U.S. 1 Date: May 16, 1949 Issues: Freedom of speech; freedom of assembly Relevant amendment: First Significance: The Supreme Court strengthened freedom of speech rights when speakers draw hostile opposition. Justice William O. Douglas wrote the opinion for the 5-4 majority, overturning the conviction of a profascist, anti-Semitic priest named Terminiello who spoke to a sympathetic audience while a hostile crowd gathered outside. Terminiello was arrested for disturbing the peace. The local court convicted him by simply finding that his speech made the audience outside the hall angry. The Supreme Court found that the fact that his speech had angered a group was inadequate grounds for a conviction because it did not show that the speaker incited actions that were a clear and present danger. The case featured strong dissents by Chief Justice Fred M. Vinson and Justices Felix Frankfurter and Robert H. Jackson, who argued that the case should have followed the fighting words limitation set out in Chaplinsky v. New Hampshire (1942). The strength of Justice Robert H. Jackson wrote a strong the dissents is significant because the dissent in Terminiello, arguing that Court’s 5-4 majority evaporated in a balance had to be sought between similar cases such as Feiner v. New expressive freedom and public order. York (1951). (Collection of the Supreme Court of the United States) Richard L. Wilson

The Cases

Terry v. Ohio / 631

Terry v. Ohio Citation: 392 U.S. 1 Date: June 10, 1968 Issues: Due process; search and seizure Relevant amendment: Fourth Significance: In this case, the Supreme Court ruled that, if an officer had reasonable suspicion that he was dealing with an armed individual, he could subject that person to a limited search of the outer clothing, a procedure sometimes known as “stop and frisk” In October, 1963, veteran detective Martin McFadden observed suspicious activity by two men in a Cleveland business district. Suspecting a daylight robbery, McFadden approached John Terry and Richard Chilton and identified himself as a police officer. When his attempts to question the men on their activities were ignored, McFadden seized the two and patted down their outer clothing. Feeling a weapon on each, McFadden removed the guns and arrested the men for carrying concealed weapons. In a pretrial motion, Terry and Chilton contended that the guns were seized during an illegal search. The Court of Common Pleas overruled the motion and sentenced the men to three years. Chilton died before the case was appealed. In June, 1968, the Supreme Court ruled 8 to 1 to uphold Terry’s conviction. Writing for the majority, Chief Justice Earl Warren concluded that the issue at hand was “whether it is always unreasonable for a policeman to seize a person and subject him to a limited search for weapons unless there is probable cause for an arrest.” In deciding this issue, the Court divided the case into the “seizure” and the “search.” The decision defined a seizure as occurring any time a police officer restrains an individual’s freedom to walk away. Determining the constitutionality of the search required a balance between the Fourth Amendment’s protection from unreasonable searches and seizures with the safety to the individuals involved. Warren concluded that a limited search was allowable if based on “specific reasonable inferences” drawn upon “the facts in the light of [the officer’s] experience.” In addition, the Court stipulated that “the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Dissenting with the

632 / Texas v. Johnson

The Cases

decision, Justice William O. Douglas looked to the legal differences between “probable cause” and “reasonable suspicion.” Relying on the protection found in the Fourth Amendment, Douglas saw the search in question as an “infringement on personal liberty” because McFadden had no probable cause for arrest prior to the search. Terry v. Ohio allowed a significant change in police procedures. It provided a police officer, once identified as such, with a legal right to perform a limited search of suspicious individuals by means of a protective pat-down. This provision helped to lower the number of injuries and deaths during initial confrontations between individuals and police officers. In addition, the police were authorized to seize any nonthreatening contraband, such as drugs or drug paraphernalia, found during a Terry search. Recognizing the potential for abuse in allowing “stop and frisk” actions by police, however, the Court was careful to outline the Fourth Amendment limitations that apply to stop and frisk searches. In Sibron v. New York, a companion case to Terry, the Court held that if the reason for the search is to find evidence rather than to check for weapons, then any evidence found is inadmissible.

Texas v. Johnson Citation: 491 U.S. 397 Date: June 21, 1989 Issues: Symbolic speech; flag desecration Relevant amendment: First Significance: The Supreme Court directly struck down state flag desecration laws. A member of the Communist Party burned the U.S. flag outside the Republican National Convention during a presidential election year in violation of Texas’s statute banning desecration of the flag. By a 5-4 vote, the Supreme Court struck down the Texas statute on the grounds that the burning of the U.S. flag was a form of symbolic speech protected by the First Amendment. The Court looked rather heavily to the motives for the flag burning and decided that the act was really a form of political protest. Some scholars thought that the Court’s position would have been more readily defensible if it had relied on a distinction be-

The Cases

Time v. Hill / 633

tween thought and action, which would have been an easier test to follow than one that relied on the flag burner’s motives. The Court’s decision set off a howl of protest across the nation. People began calling for a constitutional amendment to exempt flag burning from First Amendment protection, but this effort failed in Congress because of concerns about the dangers involved in amending the Bill of Rights. Congress did attempt to overcome the Court’s objections with a statute, the Flag Protection Act of 1989. The Court struck down the federal statute as it had the Texas statute in United States v. Eichman (1990). Richard L. Wilson

Thornhill v. Alabama Citation: 310 U.S. 88 Date: April 22, 1940 Issues: Freedom of assembly; labor Relevant amendment: First Significance: The Supreme Court declared that peaceful labor union picketing was protected by the First Amendment. Justice Frank Murphy wrote the opinion for the 8-1 majority, striking down an Alabama statute that prohibited all forms of labor union picketing. The Supreme Court clearly held that the First Amendment guarantee of the right “peaceably to assemble” would apply to labor union picketing. The qualifier “peaceably” meant states could enact specific limitations on the time, place, and manner of labor union picketing as they could for other demonstrations, but they could not simply ban all picketing as Alabama had. Justice James C. McReynolds dissented. Richard L. Wilson

Time v. Hill Citation: 385 U.S. 374 Date: January 9, 1967 Issue: Libel Relevant amendment: First

634 / Tinker v. Des Moines Independent Community School District

The Cases

Significance: The Supreme Court extended the application of the actual malice rule in libel cases to false-light privacy actions. An article in Life magazine contained inaccurate information about the Hill family, whose experiences while held in their own home by convicted criminals had been portrayed in a Broadway play. The Hill family sued the magazine’s publisher, Time, Inc., for invasion of privacy under a New York law. Justice William J. Brennan, Jr., writing for a 5-4 member majority, held that the magazine and its publisher were not liable for a libel judgment because a public figure failed to prove the necessary condition that the magazine had acted out of actual malice or a reckless disregard of the truth. Justices Hugo L. Black and William O. Douglas concurred. Chief Justice Earl Warren and Justices Abe Fortas and Tom C. Clark dissented. Justice John Marshall Harlan II dissented in part and concurred in part. In Gertz v. Robert Welch (1974), however, the Court ruled that private people did not have to prove actual malice to recover damages even if matters of public interest were involved. This ruling made the impact of Time v. Hill less clear. Richard L. Wilson

Tinker v. Des Moines Independent Community School District Citation: 393 U.S. 503 Date: February 24, 1969 Issue: Symbolic speech Relevant amendment: First Significance: The Supreme Court’s decision strengthened the rights of freedom of speech and symbolic speech for students. Three Des Moines, Iowa, students protested the Vietnam War by wearing black arm bands to school in violation of the school’s policy. After they were suspended, the students challenged the policy, claiming it denied them their First Amendment rights. Justice Abe Fortas wrote the opinion for the 7-2 majority, voiding the school’s policy. The Supreme Court held that the wearing of arm bands, absent any other behavior that might subject the students to discipline, was an acceptable form of protest. It found

The Cases

Trop v. Dulles / 635

no relation between the regulation and school discipline and stated that student opinions could not be confined to those officially approved. Justices Potter Stewart and Byron R. White concurred, and Justices Hugo L. Black and John M. Harlan II dissented. Richard L. Wilson

Trop v. Dulles Citation: 356 U.S. 86 Date: March 31, 1958 Issue: Cruel and unusual punishment Relevant amendment: Eighth Significance: The Supreme Court held that Congress could not authorize the military to deprive a soldier of his citizenship. A plurality of four justices wanted to rule that expatriation was a cruel and unusual punishment, violating the Eighth Amendment. Based on several acts of Congress, Albert Trop was sentenced to involuntary expatriation for the crime of wartime desertion. By a 5-4 vote, the Supreme Court overturned the sentence on narrow grounds. Speaking for a plurality, Chief Justice Earl Warren argued that the punishment violated the Eighth Amendment and that the amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Warren’s opinion was accepted by a majority of the justices in 1967, and his dictum (individual, nonbinding statement) on the meaning of the Eighth Amendment has often been quoted in capital punishment cases. On the same day that Trop was announced, the Court also issued a companion decision, Perez v. Brownell (1958), in which the justices voted five to four to uphold the revocation of a person’s citizenship for voting in a foreign election. In a strong dissent, Chief Justice Warren repeated the arguments he used in his Trop opinion. In Afroyim v. Rusk (1967), the Court accepted Warren’s point of view, reversed the Perez decision, and held that the expatriation provision of the Nationality Act of 1940 was unconstitutional. Thomas T. Lewis

636 / Twining v. New Jersey

The Cases

Twining v. New Jersey Citation: 211 U.S. 78 Date: November 9, 1908 Issue: Immunity against self-incrimination Relevant amendment: Fifth Significance: Reaffirming that the due process requirements of the Fourteenth Amendment did not include all the principles in the Bill of Rights, the Supreme Court ruled that the Fifth Amendment privilege against self-incrimination did not apply to the states. In a criminal trial, the trial judge instructed the jury that the defendant’s refusal to testify might be considered in reaching a verdict. Found guilty, Twining claimed that the judge’s instructions were a violation of his Fifth Amendment right. The Supreme Court, however, rejected Twining’s position by an 8-1 vote. Justice William H. Moody’s opinion emphasized that many precedents had held that the states were not obligated to follow all

Justice William H. Moody’s opinion in Twining emphasized precedents that showed states did not have to follow all Bill of Rights requirements. (Library of Congress)

The Cases

Tyson v. Banton / 637

the requirements of the Bill of Rights. For the purposes of discussion, Moody acknowledged that the trial judge’s comments constituted an infringement on Twining’s privilege against self-incrimination. In dissent, John Marshall Harlan argued that the privilege was a fundamental principle of the Anglo-American legal tradition, and he also spoke in favor of the full incorporation of the Bill of Rights into the Fourteenth Amendment. Although subsequent Courts never accepted Harlan’s position on full incorporation, the Twining decision was finally reversed in Malloy v. Hogan (1964). Thomas T. Lewis

Tyson v. Banton Citation: 273 U.S. 418 Date: February 28, 1927 Issue: Regulation of business Relevant amendments: Fifth, Fourteenth Significance: Reaffirming that the states could regulate only “business affected with a public interest,” the Supreme Court overturned a law restricting ticket scalping. During the 1920’s the New York State legislature passed a statute to protect the public against excessive charges in the resale of theater tickets. By a 5-4 vote, the Supreme Court ruled that the law violated a substantive freedom of enterprise, which was protected by the Fourteenth Amendment. Justice George Sutherland’s opinion for the majority was based on the theory that government could use its police power only to regulate those businesses that were “affected with a public interest.” Using the narrow definition of such businesses in Wolff Packing Co. v. Court of Industrial Relations (1923), Sutherland observed that only a small percentage of the public went to theaters and that the business of selling theater tickets was not an essential service in the economy. The dissenters rejected the idea that only some businesses were of interest to the public, and they argued that state legislatures should be able to use their police powers to regulate any private business to promote the welfare of their citizens. In 1934 the majority of the justices would accept the view of the dissenters in the landmark case of Nebbia v. New York. Thomas T. Lewis

638 / Ullman v. United States

The Cases

Ullman v. United States Citation: 350 U.S. 42 Date: March 26, 1956 Issues: Immunity against self-incrimination; congressional power of investigation Relevant amendment: Fifth Significance: The Supreme Court refused to protect those given limited immunity from prosecution in exchange for their testimony before a grand jury investigating communist activities. Justice Felix Frankfurter wrote the opinion for the 7-2 majority, upholding the Immunity Act. A federal court acting under the Immunity Act ordered defendant Ullman to testify before a grand jury investigating communist activities that potentially endangered national security. Despite having transactional immunity from state or federal prosecution for his compelled testimony, Ullman refused to testify and was imprisoned for six months for contempt of court. On appeal, Ullman said the immunity was incomplete because he still faced potential loss of a job or union membership and public contempt. Frankfurter rejected the argument, pointing out that the Fifth Amendment protected only against criminal prosecution. Justices Hugo L. Black and William O. Douglas dissented. Richard L. Wilson

United States District Court, United States v. Citation: 407 U.S. 297 Date: February 24, 1972 Issue: Search warrant requirement Relevant amendment: Fourth Significance: The Supreme Court prohibited the government from using electronic surveillance without a search warrant. The administration of President Richard M. Nixon wanted to engage in electronic surveillance of dissident anti-Vietnam War and Civil Rights groups without having to obtain a search warrant. The government

The Cases

Ursery, United States v. / 639

claimed that requiring warrants violated the separation of powers concept because it enabled the judicial branch to interfere with the executive branch, but by an 8-0 vote, the Supreme Court found the proposed activity would violate both the First and Fourth Amendments to the Constitution. Justice Lewis F. Powell, Jr., wrote the opinion for the Court, with. Chief Justice Warren E. Burger and Justices William O. Douglas and Byron R. White concurring. This decision was rendered just a few days after the infamous burglary of the Democratic Party national headquarters in the Watergate, which clearly involved electronic surveillance equipment. Richard L. Wilson

Ursery, United States v. Citation: 116 S. Ct. 2135 Date: June 24, 1996 Issue: Double jeopardy Relevant amendment: Fifth Significance: The Supreme Court determined that civil forfeitures in drug manufacturing and money laundering cases do not cause double jeopardy. Congress passed laws requiring the forfeiture of property in drug manufacturing and money laundering cases. The defendant, Guy Ursery, was required to forfeit his property, including his house, in a drug manufacturing case. After he was convicted, he sought to have his conviction overturned on grounds that he had already been punished criminally by the forfeiture. He prevailed in a lower court that used United States v. Halper (1989) to rule that civil penalties could be as punitive as criminal penalties. The Supreme Court, by a vote of eight to one, upheld the federal government’s imposition of civil forfeiture of property in drug manufacturing and money laundering cases. Without overturning Halper or holding that civil penalties could not be as punitive as criminal penalties, the Court held they were not punishment in this case and therefore could not constitute double jeopardy. Richard L. Wilson

640 / Wade, United States v.

The Cases

Wade, United States v. Citation: 388 U.S. 218 Date: June 12, 1967 Issue: Right to counsel Relevant amendment: Sixth Significance: The Supreme Court’s decision further expanded the defendant’s right to counsel beyond its 1966 ruling. Wade, a defendant in a bank robbery case, was placed in a police lineup without having an attorney present. In the lineup, he and the others were required to wear a mask and say, “Put the money in the bag.” By a 5-4 vote, the Supreme Court held that this setting and the required statement were self-incriminating and in violation of the Fifth Amendment. In his opinion for the Court, Justice William J. Brennan, Jr., overturned Wade’s conviction and stated that the lineup was a critical stage in the proceedings, mandating the appointment of counsel for indigents. The Court’s decision greatly expanded the right to counsel that had already been increased by Miranda v. Arizona (1966). Chief Justice Earl Warren and Justice William O. Douglas joined in an opinion written by Justice Abe Fortas overturning the conviction but rejecting the Court’s finding that the lineup procedures were self-incriminating. Justices John M. Harlan II and Potter Stewart joined in a dissent by Justice Byron R. White upholding the conviction and rejecting the Court’s view that the lineup is a critical stage in the proceedings. Justice Hugo L. Black upheld the conviction but rejected the Court’s holding that the lineup constituted selfincrimination. Richard L. Wilson

Wallace v. Jaffree Citation: 472 U.S. 38 Date: June 4, 1985 Issue: Separation of church and state Relevant amendment: First Significance: Applying an expansive interpretation of the establishment clause of the First Amendment, the Supreme Court struck down a

The Cases

Wallace v. Jaffree / 641

state law that authorized schools to devote a minute of silence for “meditation or voluntary prayer.” The majority of the public, especially in the South, disagreed with Engel v. Vitale (1962), which had banned formal prayers from the public schools. In 1978 the Alabama legislature authorized the schools to devote one minute of silence “for meditation.” In 1981 the legislature amended the law to authorize the period “for meditation or voluntary prayer.” In 1982 the legislature authorized teachers to lead “willing students” in oral prayers. In response to the laws, Ishmael Jaffree, an outspoken humanist and father of six children, complained that public officials were subjecting his children to indoctrination and pressures to participate in religious conduct. As expected, the federal courts quickly ruled that the 1982 law was unconstitutional. In Wallace v. Jaffree, the Supreme Court justices voted six to three that the 1981 law also violated the establishment clause. Justice John Paul Stevens’s opinion for the majority analyzed the law according to the first criterion of the Lemon test (developed in Lemon v. Kurtzman, 1971), which meant that the law must be invalidated if it was motivated entirely by the purpose of advancing religion. From the record, Stevens found that the

Chief Justice Warren Burger wrote a scathing dissent in the Court’s Wallace decision. (Collection of the Supreme Court of the United States)

642 / Walz v. Tax Commission

The Cases

legislature’s only motivation was to “endorse prayer as a favored practice.” In a concurring opinion, Justice Sandra Day O’Connor emphasized that neutral moments of silence were constitutional. In a strong dissent, Justice William H. Rehnquist argued that the intent of the First Amendment was merely to prohibit establishment of a national church or laws preferring one sect over another. Similarly, Chief Justice Warren E. Burger wrote that it was almost “ridiculous” to suggest that silent prayers could lead to an established religion, and he referred to Marsh v. Chambers (1983), in which the Court had allowed formal prayer rituals in legislative sessions. Thomas T. Lewis

Walz v. Tax Commission Citation: 397 U.S. 664 Date: May 4, 1970 Issue: Establishment of religion Relevant amendment: First Significance: The Supreme Court upheld property tax relief for religious institutions. Chief Justice Warren E. Burger wrote the opinion for the 8-1 majority, holding that New York State’s exemption of religious institutions from paying property taxes did not violate the establishment of religion clause. The Supreme Court found that this law, which implemented a provision of the New York State constitution, was sufficiently remote from entanglement of the government in religion that it did not attempt to establish religion. The law exempted all real estate owned by an association organized exclusively for religious purposes. Justice William O. Douglas dissented. Richard L. Wilson

Washington v. Davis Citation: 426 U.S. 229 Date: June 7, 1976 Issue: Employment discrimination Relevant amendments: Fifth, Fourteenth

The Cases

Washington v. Davis / 643

Significance: The Supreme Court ruled that plaintiffs must show a discriminatory intent, not merely a disparate impact, to prevail under the equal protection requirements of the Fifth and Fourteenth Amendments. In 1970 African American plaintiffs challenged the constitutionality of a hiring and promotion policy of the District of Columbia police department. They objected to the use of Test 21, which attempted to measure verbal skills and reading ability, because African American applicants failed the test at a rate four times that of white applicants. They were encouraged by Griggs v. Duke Power Co. (1971), when the Supreme Court interpreted Title VII so that employers had to demonstrate the business necessity of any employment policies having a disparate impact on racial minorities. The plaintiffs in the Washington case had to rely on the Fifth Amendment because at the time they filed suit Title VII did not apply to governmental agencies. By a 7-2 vote, the Court upheld the use of the examination. Justice Byron R. White’s opinion for the majority emphasized that an employment practice is not unconstitutional “solely because it has a racially disproportionate impact.” Citing numerous precedents, White concluded that the Court had employed the “purposeful discrimination” test when examining claims of a constitutional violation. Addressing the questions of when and how one might infer discriminatory intent, White wrote that disproportionate impact was “not irrelevant,” but that it had to be considered within the context of the totality of relevant facts. The Constitution did not require scientific proof that requirements were related to job performance, but employers had to show that there was a reasonable relationship between the two. White found that Test 21 was neutral on its face and rationally related to the legitimate governmental purpose of improving the communication skills of police officers. The Washington decision did not disturb the Court’s earlier rulings in regard to Title VII of the Civil Rights Act of 1964, prohibiting many employment requirements that had a disproportionate effect on minorities. It also actually had little influence in regard to the racial effects of employment requirements because Title VII was expanded to include governmental employees in 1972. The decision was important, however, for nonemployment cases such as McCleskey v. Kemp (1987), in which the Court disregarded statistical studies when examining the constitutionality of capital punishment. Thomas T. Lewis

644 / Washington v. Glucksberg

The Cases

Washington v. Glucksberg Citation: 117 S.Ct. 2258 Date: June 26, 1997 Issue: Physician-assisted suicide Relevant amendments: Fifth, Ninth, Fourteenth Significance: The Supreme Court held that the U.S. Constitution does not guarantee any right to have assistance in committing suicide. In Cruzan v. Director, Missouri Department of Health (1990), the Supreme Court “assumed and strongly suggested” that the due process clause of the Fourteenth Amendment protects the traditional right of competent adults to refuse medical treatment, including life-support systems. Building on this substantive reading of the due process clause, the Ninth Circuit struck down Washington State’s ban on assisted suicide, and it recognized that terminally ill competent adults have the right to hasten their deaths with medication prescribed by physicians. The Supreme Court unanimously reversed the lower court’s ruling. Speaking for a majority, Chief Justice William H. Rehnquist found that the decision to terminate medical treatment was fundamentally different from providing active assistance in a suicide. The use of substantive due process, he emphasized, should be limited to protecting those rights and liberties that are “deeply rooted in this Nation’s history and traditions,” and he noted that this tradition had almost universally rejected any notion of a right to commit suicide. Washington’s law, moreover, furthered the state’s legitimate interest in protecting human life. Four justices, while concurring in Rehnquist’s ruling, expressed more expansive views of individual rights to personal autonomy protected by substantive due process, recognizing some right to avoid pain and suffering. Thomas T. Lewis

Watkins v. United States Citation: 354 U.S. 178 Date: June 17, 1957 Issue: Congressional power of investigation Relevant amendment: Fifth

The Cases

Weeks v. United States / 645

Significance: When a congressional committee conducts an investigation, the due process clause requires that it must clearly articulate the subject matter of the investigation and that all questions must be pertinent to the investigation. During the early years of the Cold War, the House Un-American Activities Committee asked broad-ranging questions of people suspected of having supported communist causes. John Watkins, a former labor leader, agreed to answer questions about his own relationship to the Communist Party but refused to answer questions about whether his personal acquaintances had been affiliated with the party in the past. He angered the committee when he declared that the information was not relevant to the investigation. For his refusal to cooperate, he was convicted of contempt of Congress. By a 6-1 vote, the Supreme Court reversed the conviction. Speaking for the Court, Chief Justice Earl Warren emphasized that a congressional committee must clearly articulate the purposes of its investigation and that it cannot compel witnesses to answer questions without giving them a fair opportunity to learn whether an answer is required. A committee has no right to expose the private life of an individual unless justified by a legitimate function of Congress. Warren expressed concern, moreover, that the committee was threatening First Amendment values. Although recognizing that the power to conduct investigations was inherent in the legislative process, he insisted that Congress must respect the constitutional rights of witnesses when gathering information. Thomas T. Lewis

Weeks v. United States Citation: 232 U.S. 383 Date: February 24, 1914 Issue: Exclusionary rule Relevant amendment: Fourth Significance: The Supreme Court created the federal exclusionary rule in criminal cases. State officers and a federal marshal conducted a warrantless arrest and search that led to Weeks’s conviction on a charge of using the mail to

646 / Weems v. United States

The Cases

transport lottery tickets. He challenged the use of the seized materials in court, saying they had been illegally taken. In ruling for Weeks and voiding his conviction, the Supreme Court unanimously ended the longstanding practice of the federal courts accepting illegally gathered evidence in court on the theory that so-called justice was more important than any individual’s right. In the opinion for the Court, Justice William R. Day ruled that the wrongly seized evidence and its introduction at trial violated the defendant’s Fourth Amendment rights. The exclusion of the tickets voided the conviction, and the Court in effect created the federal exclusionary rule, the significance of which grew in later years. Richard L. Wilson

Weems v. United States Citation: 217 U.S. 349 Date: May 2, 1910 Issue: Cruel and unusual punishment Relevant amendment: Eighth

Writing for the majority in Weems, Justice Joseph McKenna recognized that notions of “cruelty” change over time. (Library of Congress)

The Cases

Weinberger v. Wiesenfeld / 647

Significance: The Supreme Court overturned a sentence as cruel and unusual for the first time, interpreting the term as referring to punishments that were unnecessarily cruel and grossly excessive for the crime. Paul Weems, a coast guard officer in the Philippines, was found guilty of falsifying the public record and sentenced to fifteen years at cadena, a punishment of Spanish origin that required the prisoner to serve the entire term at hard labor bound by heavy chains around his wrists and ankles. Although the sentence was given under Philippine law, the Philippine Bill of Rights contained a provision almost identical to the Eighth Amendment. By a 4-2 margin, the Supreme Court ordered Weems released. Writing for the majority, Justice Joseph McKenna recognized that the concept of cruelty changed over time and that a punishment for a particular crime was cruel when disproportionately harsh in comparison with those levied for more serious crimes. Thomas T. Lewis

Weinberger v. Wiesenfeld Citation: 420 U.S. 636 Date: March 19, 1975 Issue: Sex discrimination Relevant amendments: Fifth, Fourteenth Significance: The Supreme Court overturned a provision of the Social Security Act that awarded benefits to widows but not widowers. In the aftermath of Reed v. Reed (1971), in which the Supreme Court ruled that classifying by gender is an equal protection violation, the Court faced the problem that many “benign” classifications favored women over men. In Kahn v. Shevin (1974), the Court was badly divided when it upheld a Florida law giving tax relief to widows but not to widowers. In Weinberger, however, the Court unanimously struck down a provision of the Social Security Act that awarded benefits to widows but not widowers. Justice William J. Brennan, Jr., wrote the opinion for the Court. Chief Justice Warren E. Burger and Justices Lewis F. Powell, Jr., and William H. Rehnquist concurred. Richard L. Wilson

648 / West Coast Hotel Co. v. Parrish

The Cases

West Coast Hotel Co. v. Parrish Citation: 300 U.S. 379 Date: March 29, 1937 Issue: Freedom of contract Relevant amendments: Fifth, Fourteenth Significance: Abandoning its long-standing freedom of contract doctrine, the Supreme Court allowed states great discretion in regulating working conditions and protecting the rights of employees. In 1935 Elsie Parrish, a resident of the state of Washington, was discharged from her job with the West Coast Hotel Company. She was being paid twenty-five cents an hour, which was significantly less than the state’s minimum wage of $14.50 per week, set by a commission according to a

Contemporary San Francisco Chronicle cartoon ridiculing President Franklin D. Roosevelt’s courtpacking plan. (FDR Library)

The Cases

Whitney v. California / 649

1913 law. Parrish sued the company for $216.19, which was the difference between the minimum wage and her actual wages during her employment. Although the Supreme Court had overturned a minimum-wage law for women as late as Morehead v. New York ex rel. Tipaldo (1936), the Washington State supreme court ruled in favor of Parrish’s claim. The hotel company appealed the judgment to the Supreme Court. Less than two months after President Franklin D. Roosevelt announced his court-packing plan, the Court formally upheld the Washington court’s ruling with a 5-4 vote. Justice Owen J. Roberts, who had voted to strike down a minimum-wage law in Morehead, joined the West Coast Hotel majority—the famous “switch in time that saved nine.” Writing for the majority, Chief Justice Charles Evans Hughes argued that the liberty of the due process clause did not prohibit state government from using their police powers to establish reasonable regulations in the interests of the community. He found that it was entirely reasonable to restrict the freedom of contract in order to provide women with a living wage, a policy clearly related to the promotion of health and welfare. He also noted that an earlier Court had approved of maximum-hour legislation for women, and he could find no relevant difference between the regulation of hours and the regulation of wages. West Coast Hotel was one of the major decisions of the so-called constitutional revolution of 1937. In effect, the landmark decision meant that the Court would henceforth give greater deference to the judgment of legislatures, and that it would no longer strike down labor regulations based on a substantive due process reading of the Fourteenth Amendment. Thomas T. Lewis

Whitney v. California Citation: 274 U. S. 357 Date: May 26, 1927 Issue: Freedom of association Relevant amendment: First Significance: The Supreme Court refined the clear and present danger concept to clearly require an imminence test. Charlotte Whitney was a member of the International Workers of the World (IWW) and briefly a member of the Communist Labor Party,

650 / Whren v. United States

The Cases

which advocated the overthrow of the U.S. government. There was no indication that Whitney did more than attend meetings, but the jury convicted her on criminal syndicalism charges. The Supreme Court unanimously sustained her conviction and the California state criminal syndicalism statute under which she was convicted. Justice Edward T. Sanford, in his opinion for the Court, cited the state’s power to protect the public from violence resulting from political action. Justices Oliver Wendell Holmes and Louis D. Brandeis concurred, with some very significant differences from the majority. They argued that Whitney’s lawyers failed her and therefore the conviction needed to stand, but they believed her lawyers might have succeeded had they used the argument that clear and present danger needed to be imminently present for her to be convicted. The justices insisted that imminence was a crucial requirement before the government could restrain speech. Only with the concept of imminence did the clear and present danger doctrine offer much hope of protecting free speech. Eventually Whitney was overturned by the Court in Brandenburg v. Ohio (1968). Richard L. Wilson

Whren v. United States Citation: 517 U.S. 806 Date: June 10, 1996 Issues: Pretextual automobile stop; racial profiling Relevant amendment: Fourth Significance: The Supreme Court ruled that the subjective motivations of police officers were irrelevant when stopping a car based on probable cause of a traffic violation, however minor. Working in a “high drug area” in an unmarked vehicle, plainclothes District of Columbia officers noticed a truck occupied by two young African Americans waiting at a stop sign for an unusually long period of time (about twenty seconds). The truck then turned, without signaling, and left the intersection at an “unreasonable” speed. When the officers stopped the truck—presumably to warn the driver about possible traffic violations—they observed plastic bags that seemed to contain cocaine. The occupants of the truck were arrested and later convicted of violating federal drug laws.

The Cases

Williams v. Florida / 651

At trial, the defense lawyers unsuccessfully tried to have the evidence suppressed. They argued that the officers did not have probable cause, or even reasonable suspicion, to think that the truck contained contraband, and they further argued that the justification for stopping the truck, given the circumstances, appeared to be pretextual. To prevent the police from using a very minor traffic violation as a pretext to investigate the possibility of other crimes on the basis of a vague suspicion, the defense lawyers asserted that the Fourth Amendment test for automobile stops should be whether an officer, acting reasonably, would have stopped the vehicle for the reason given. The Supreme Court unanimously found that the police were justified in stopping a vehicle in the circumstances of the case. Delivering the opinion of the Court, Justice Antonin Scalia wrote that “the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.” He referred to precedents in which the Court had refused to entertain Fourth Amendment probablecause challenges based on the subjective motivations of police officers. Although Scalia acknowledged that the Constitution prohibits selective law enforcement based on considerations such as race, he saw “no realistic alternative to the traditional common-law rule that probable cause justifies a search and seizure.” Civil libertarians worried that the Whren ruling was inconsistent with the spirit of the Fourth Amendment. They argued that the broad scope of ruling would allow the police to use traffic stops to investigate individuals without being able to articulate any reasonable cause, which might encourage practices like “racial profiling.” They noted that the police, after having made a stop, may frisk occupants for weapons based on reasonable suspicion, investigate suspicious containers in plain view, request consent searches without explaining the right to refuse, and use dogs to detect drugs without reasonable suspicion of any kind. Thomas T. Lewis

Williams v. Florida Citation: 399 U.S. 78 Date: June 22, 1970 Issue: Jury size Relevant amendments: Sixth, Fourteenth

652 / Williams v. Mississippi

The Cases

Significance: The Supreme Court authorized a reduction in the size of juries from twelve to six. Defendant Williams was convicted of a felony by a six-member jury because Florida allowed six-person juries for all criminal cases except capital murder. Williams argued that the smaller jury denied him his Sixth Amendment right to trial by jury. The Supreme Court held, seven to one, that six people were enough to have on either a civil or a criminal jury (absent a state constitution or law mandating twelve jurors) on the state or federal level. The Court’s decision has been widely criticized for offering no evidence for its conclusion that six-member juries are adequate, but the Court later reaffirmed its decision and six-member juries are now commonplace. Richard L. Wilson

Williams v. Mississippi Citation: 170 U.S. 213 Date: April 25, 1898 Issue: Jury composition Relevant amendments: Sixth, Fourteenth Significance: The Supreme Court ignored its 1886 ruling and upheld the murder conviction of an African American in a trial in which no African Americans served on the jury. Williams, an African American from Mississippi, had been convicted of murder by an all-white jury. Williams argued, in line with Yick Wo v. Hopkins (1886), that his indictment and conviction by all-white grand and petit juries violated the Fourteenth Amendment’s equal protection clause. At the time in Mississippi, African Americans were effectively excluded from jury service because only qualified voters could serve, and poll taxes and literacy tests rendered most African Americans unable to vote. The Court distinguished Yick Wo and its principle that a racially fair law could be voided if it was administered in a discriminatory manner from the facts of this case, saying that Williams did not prove that the actual practice of Mississippi’s suffrage laws was unfair. As a result of this ruling, other southern states quickly followed Mississippi and passed laws designed to prevent African Americans from voting. White primaries, poll

The Cases

Wisconsin v. Mitchell / 653

taxes, and literacy tests became common in the South until white primaries were banned in the 1940’s and discriminatory voting practices were stopped by the 1964 and 1965 Voting Rights Acts. Richard L. Wilson

Wisconsin v. Mitchell Citation: 509 U.S. 476 Date: June 11, 1993 Issue: Freedom of speech Relevant amendment: First Significance: The Supreme Court upheld the constitutionality of a state law that increased the sentence for a crime in which the defendant intentionally selected the victim on the basis of race, national origin, religion, sexual orientation, or similar characteristics. In 1989 Todd Mitchell and several other young African Americans were discussing the white racism depicted in the film Mississippi Burning, and they became so angry that they attacked a white boy, leaving him unconscious for four days. Mitchell was convicted of aggravated assault, a crime for which Wisconsin law assigned a maximum sentence of two years’ imprisonment. However, because the state’s hate crime statute allowed for an enhanced punishment, Mitchell was sentenced to four years’ imprisonment. The main question before the Supreme Court was whether the hate crime statute violated the freedom of expression guaranteed by the First Amendment. The justices unanimously agreed that it did not. Speaking for the Court, Chief Justice William H. Rehnquist argued that the statute simply punished overt conduct and that violence had never been protected by the concepts of symbolic speech and expressive conduct. Under the statute, moreover, motive plays the same role as it does under antidiscrimination laws, which had survived constitutional challenge. Recognizing that people have a right to “bigoted speech,” Rehnquist rejected the argument that the statute might have a chilling effect on such expressions, because only those persons contemplating acts of violence would need to worry about whether their speech might be used as evidence under the statute. Thomas T. Lewis

654 / Wisconsin v. Yoder

The Cases

Wisconsin v. Yoder Citation: 406 U.S. 205 Date: May 15, 1972 Issue: Freedom of religion Relevant amendment: First Significance: Using the compelling interest standard, the Supreme Court held that a state could not require the children of some religious sects to attend high school. Wisconsin’s compulsory school-attendance law required children to attend public or private schools until the age of sixteen. The Old Order Amish Church was opposed to formal education beyond the eighth grade because such an environment promotes secular and competitive values contrary to the Amish way of life. After the eighth grade, however, Amish parents did provide additional career training and religious instruction in private homes. Jonas Yoder and another Amish parent were convicted and fined five dollars each for violating the law. By a 6-1 margin, the Supreme Court found that application of the law to Amish parents was prohibited by the free exercise clause of the First Amendment. Writing for the Court, Chief Justice Warren E. Burger balanced the free exercise claims of the parents against the state’s competing interest in educating children. Although the state’s interest in education was of “the highest order,” it was not absolute to the exclusion of all other interests. Burger emphasized the long history of Amish traditions and that the Amish alternative to education prepared young people to function effectively in later life. Referring to Sherbert v. Verner (1963), he noted that a law neutral on its face could be unconstitutional if it placed an undue burden on the free exercise of one’s religious beliefs. Dissenting in part, Justice William O. Douglas wrote that the children themselves should have the choice of deciding whether or not to attend high school. In Employment Division, Department of Human Resources v. Smith (1990), the Court rejected the compelling interest standard in cases dealing with indirect burdens on religious conduct; thus, it is unclear whether Yoder continues as a binding precedent. Thomas T. Lewis

The Cases

Wolf v. Colorado / 655

Wolf v. Colorado Citation: 338 U.S. 25 Date: June 27, 1949 Issues: Incorporation doctrine; exclusionary rule Relevant amendment: Fourth Significance: The Supreme Court held that the Fourth Amendment’s freedom from unreasonable searches is binding on the states because it is fundamental to the Fourteenth Amendment’s concept of ordered liberty, but the Court also decided that state courts were not required to use the exclusionary rule. When Julius Wolf was convicted in state court for practicing illegal abortions, the prosecution used evidence obtained contrary to the provisions of the Fourth Amendment. In a federal trial, such evidence would have been excluded from consideration by the jury, as required in Weeks v. United States (1914). Wolf’s lawyers claimed that the use of the evidence rendered his conviction invalid. In Wolf, the Supreme Court made two rulings. First, speaking for a unanimous Court, Justice Felix Frankfurter stated that state laws must honor the Fourth Amendment’s “core” right, which is “the security of one’s privacy against arbitrary intrusion by the police.” Second, the justices decided, by a 6-3 margin, that the exclusionary rule was not “an essential ingredient” of the amendment. Frankfurter, speaking for the majority, emphasized that federalism required the Court to use restraint when placing demands on the states. He noted that other common-law countries did not employ the exclusionary rule and that there were other legitimate ways to restrain police misconduct. The dissenters, in contrast, argued that the exclusionary rule was the only effective means of giving “content to the commands of the Fourth Amendment.” The Wolf decision gave rise to the silver platter doctrine, which often allowed federal and state prosecutors to share illegally obtained evidence for the purpose of using it in a criminal trial. The Court ended this practice in Elkins v. United States (1960) and accepted the position of the Wolf dissenters in Mapp v. Ohio (1961). Thomas T. Lewis

656 / Wolff Packing Co. v. Court of Industrial Relations

The Cases

Wolff Packing Co. v. Court of Industrial Relations Citation: 262 U.S. 522 Date: June 11, 1923 Issues: Freedom of contract; regulation of businesses Relevant amendments: Fifth, Fourteenth Significance: Taking a broad view of economic freedom, the Supreme Court placed the majority of businesses outside the reach of state regulations. The 1920 Court Industrial Relations Act of Kansas provided for compulsory arbitration of labor disputes in several key industries and authorized a regulatory commission to decide wages and working conditions in many circumstances. The Supreme Court ruled unanimously that the law violated the freedom of contract as protected by the Fourteenth Amendment. Chief Justice William H. Taft’s opinion for the Court was influential because of its narrow definition of the “affected with a public interest” justification for regulating private businesses. Taft mentioned three categories of affected businesses: those operating under a public grant of privilege, such as public utilities; occupations historically recognized as performing a special service, such as inns or cabs; and powerful businesses, such as monopolies, which without regulation might subject the public to exorbitant charges and arbitrary control. For the next decade, Taft’s definition of “affected with a public interest” served as a theoretical basis for striking down numerous state regulations. In Nebbia v. New York (1934), however, the Court rejected the public interest theory of Wolff Packing Co., and it accepted the idea that states had the authority to regulate all kinds of businesses, large or small. Thomas T. Lewis

Woodson v. North Carolina Citation: 428 U.S. 280 Date: July 2, 1976 Issue: Capital punishment Relevant amendment: Eighth

The Cases

Yates v. United States / 657

Significance: The Supreme Court held that laws requiring a mandatory death penalty were inconsistent with the Eighth Amendment. Following Furman v. Georgia (1972), North Carolina enacted a statute requiring the death penalty for persons convicted of first-degree murder. Woodson, an accomplice in a robbery/murder, asserted that the law was unconstitutional. In a 5-4 vote, the Supreme Court agreed. Justice Byron R. White argued that the law violated “evolving standards of decency” for three reasons: First, it provided no opportunity for “particularized consideration” of the circumstances and motivation of the crime; second, capital punishment is a unique form of punishment that requires individualized sentencing; and third, the law might encourage juries to find a defendant innocent in order to escape the death sentence. Woodson was consistent with the more well-known case of Gregg v. Georgia (1976), which was announced on the same day. Thomas T. Lewis

Yates v. United States Citation: 354 U.S. 298 Date: June 17, 1957 Issue: Freedom of association Relevant amendment: First Significance: In reversing the convictions of some Communist Party leaders under the 1940 Smith Act, the Supreme Court signaled a change in the direction of its treatment of unpopular organizations. Fourteen leaders in the Communist Party were convicted of conspiracy under the 1940 Smith Act. The facts of this case almost exactly match those of Dennis v. United States (1951), in which the Supreme Court upheld the convictions of eleven people under the 1940 act. In Yates, the Court found two reasons to dismiss these convictions, but the real changes were in the composition of the Court, the attitudes of the justices, and the political climate. Justice John M. Harlan II wrote the 6-1 majority opinion attempting to reconcile the Court’s actions in Yates with those in Dennis by asserting that the instructions to the jury failed to note the difference between advocacy of an abstract doctrine and specific actions, as Court decisions going back to Gitlow v. New York (1925) had re-

658 / Young v. American Mini Theatres

The Cases

quired. The Court also held that the Smith Act was overbroad in that the word “organize,” contained in its text, was vague—as the government itself admitted. These two critical distinctions meant that the Smith Act was now virtually worthless for future prosecution. No further cases were brought under it, although nine of the fourteen Yates defendants were ordered to face a new trial. Justices Hugo L. Black and William O. Douglas dissented, arguing that the Smith Act was unconstitutional and that all defendants should be released. Richard L. Wilson

Young v. American Mini Theatres Citation: 427 U.S. 50 Date: June 24, 1976 Issue: Zoning Relevant amendment: First Significance: The Supreme Court upheld zoning ordinances that significantly restricted the location of theaters and bookstores dealing in sexually explicit materials. Detroit’s anti-skid row ordinance required that adult stores (those dealing in sexually explicit materials) be dispersed and that they be located at least five hundred feet from residential areas. The ordinance applied to all erotic materials, whether or not they were legally obscene. By a 5-4 vote, the Supreme Court upheld the ordinance. In a plurality opinion, Justice John Paul Stevens made the following points: First, sexually explicit materials were entitled to less First Amendment protection than other forms of expression; second, the zoning regulations did not totally eliminate the availability of the materials; and third, the city had a valid interest in preserving the character of its neighborhoods. In a concurring opinion, Justice Lewis F. Powell, Jr., emphasized that the ordinances placed only “incidental and minimal” limits on the expression of producers and the choice of consumers. The Court has often reaffirmed the basic approach of the Young decision. Thomas T. Lewis

The Cases

Younger v. Harris / 659

Younger v. Harris Citation: 401 U.S. 37 Date: February 23, 1971 Issues: Abstention doctrine; federalism Relevant amendment: First Significance: The Supreme Court reinforced the doctrine of abstention, prohibiting federal judges from intervening in most state court proceedings before they have been finalized. During the controversial Vietnam War, John Harris, Jr., was indicted in a California court for violating a criminal syndicalism statute that was virtually identical to the law that had been ruled unconstitutional in Brandenburg v. Ohio (1969). Finding that the law violated the First and Fourteenth Amendments, a three-judge federal court issued an injunction restraining district attorney Evelle Younger from prosecuting Harris. By an 8-1 vote, the Supreme Court lifted the injunction. Justice Hugo L. Black’s opinion for the majority emphasized the concept of comity, which requires mutual respect between federal and state governments. A longestablished policy prohibited federal courts from interfering with state proceedings except under very limited conditions, as when expressly authorized by an act of Congress or when a person could show a likely danger of irreparable damages. In contrast to the exception allowed in Dombrowski Justice William O. Douglas wrote a dissent v. Pfister (1965), Black concluded in Younger, arguing that federal courts that Harris had not shown that should use special vigilance during periods state officials were guilty of bad of repression to protect those asserting their faith or harassment. The possibilFirst Amendment rights in unpopular causes. (Library of Congress) ity that a prosecution might cre-

660 / Zadvydas v. Davis

The Cases

ate a chilling effect on free speech was not an adequate reason to justify a federal injunction. Black also argued that the federal courts should not pass judgments on state statutes without the benefit of interpretations of the state courts. Dissenting, Justice William O. Douglas argued that the logic of Dombrowski required the federal courts to use special vigilance in periods of repression when enormous sanctions were imposed on those “who assert their First Amendment Rights in unpopular causes.” Thomas T. Lewis

Zadvydas v. Davis Citation: No. 7791 Date: June 28, 2001 Issue: Constitutional rights of deportable noncitizens Relevant amendment: Fifth Significance: In a decision that would have an immediate impact on thousands of people, the Supreme Court ruled that the government may not detain deportable aliens indefinitely simply because no other country is willing to accept them. Kestutis Zadvydas, a person of Lithuanian ancestry, was born in a displaced persons camp in Germany and entered the United States as a child. After a long criminal record, the Immigration and Naturalization Service (INS) ordered him to be deported to his country of citizenship. However, both Lithuania and Germany rejected his citizenship claims and refused to accept him. After being detained by the U.S. government for more than five years, Zadvydas claimed that the due process clause of the Fifth Amendment prohibited the INS from indefinitely detaining him without condemnation in a criminal trial. The INS justified the detention by reference to an interpretation of a 1996 federal statute. A federal appeals court refused to exercise judicial review over the immigration policies of the legislative and executive branches. By a 5-4 margin, the Supreme Court repudiated the idea of allowing the INS unlimited discretion for detaining Zadvydas and others in similar circumstances. Writing for the majority, Justice Stephen G. Breyer emphasized that the due process clause of the Fifth Amendment put “important constitutional limitations” on legislative and executive policies to-

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ward all persons who had entered the country, even if they were in the country illegally. After a “reasonable” period of six months, if deportation appeared unlikely in the foreseeable future, he wrote that the INF had the burden of showing an adequate reason for keeping the person in custody. He observed that preventive detention would be appropriate when there was sufficient evidence that a person was dangerous to society. Of the 20,000 aliens detained by the INS, it was difficult to estimate how many would be affected by the Zadvydas ruling. Thomas T. Lewis

Zorach v. Clauson Citation: 343 U.S. 306 Date: April 28, 1952 Issue: Released time Relevant amendment: First Significance: The Supreme Court upheld a released-time program on the grounds that the religious instruction did not take place on school property or require the expenditure of public funds, and there was no evidence that students were being pressured into attending the religious classes. In Illinois ex rel. McCollum v. Board of Education (1948), the Court ruled that an on-campus released-time program violated the establishment clause of the First Amendment. In Zorach, the justices voted six to three to approve a New York program in which students with parental permission left campus to participate in religious activities while other students attended study hall. Speaking for the Court, Justice William O. Douglas emphasized the need for religious accommodation and asserted that Americans “are a religious people whose institutions presuppose a Supreme Being.” The three dissenters argued that the location of the program was not the central issue, and they found that New York was using the coercive apparatus of the public school system in order to encourage religious activities. Douglas later repudiated his accommodationist statements in Zorach. Although Zorach remains good law, released-time programs have largely been replaced by policies allowing religion-oriented students to have equal access to school facilities. In Board of Education v. Mergens

662 / Zurcher v. The Stanford Daily

The Cases

(1990), the Court approved of the Equal Access Act of 1984, which requires public secondary schools to permit students to voluntarily meet for religious activities if they are permitted to meet for other purposes. Thomas T. Lewis

Zurcher v. The Stanford Daily Citation: 436 U.S. 547 Date: May 31, 1978 Issue: Newsroom searches Relevant amendments: First, Fourth Significance: The Supreme Court held that newspaper offices do not have any special protection from searches and seizures. Local police clashed with demonstrators at Stanford University Hospital, and the school paper, The Stanford Daily, printed a photograph of the ruckus. Police hoped to find more photographs and obtained a warrant to search the paper’s office where, finding no pictures, they instead read confidential files. The paper sued under the First and Fourth Amendments, and the lower federal courts agreed. However, the Supreme Court ruled five to three against the Stanford paper. In his opinion for the Court, Justice Byron R. White wrote that there that there was no special Fourth Amendment protection governing searches of press offices. Justices Potter Justice Byron R. White, in his majority opinion Stewart and Thurgood Marin Zurcher, saw no special Fourth Amendment protections governing searches of press rooms. shall dissented, arguing that (Collection of the Supreme Court under the circumstances, the of the United States) warrant did threaten press op-

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erations and have a negative effect on potential news sources. Justice John Paul Stevens found the warrant unconstitutional because the newspaper was not under suspicion. Media outrage at the Court’s decision led to passage of the 1980 Privacy Protection Act. Richard L. Wilson

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667

THE DECLARATION OF INDEPENDENCE In Congress, July 4, 1776 The unanimous declaration of the thirteen United States of America When in the Course of human Events, it becomes necessary for one People to dissolve the Political Bands which have connected them with another, and to assume among the Powers of the Earth, the separate and equal Station to which the Laws of Nature and of Nature’s God entitle them, a decent Respect to the Opinions of Mankind requires that they should declare the causes which impel them to the Separation. We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness—That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, that whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient Causes; and accordingly all Experience hath shewn, that Mankind are more disposed to suffer, while Evils are sufferable, than to right themselves by abolishing the Forms to which they are accustomed. But when a long Train of Abuses and Usurpations, pursuing invariably the same Object, evinces a Design to reduce them under absolute Despotism, it is their Right, it is their Duty, to throw off such Government, and to provide new Guards for their future Security. Such has been the patient Sufferance of these Colonies; and such is now the Necessity which constrains them to alter their former Systems of Government. The History of the present King of Great Britain is a History of repeated Injuries and Usurpations, all having in direct Object the Establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid World. He has refused his Assent to Laws, the most wholesome and necessary for the public Good.

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He has forbidden his Governors to pass Laws of immediate and pressing Importance, unless suspended in their Operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them. He has refused to pass other Laws for the Accommodation of large Districts of People, unless those People would relinquish the Right of Representation in the Legislature, a Right inestimable to them, and formidable to Tyrants only. He has called together Legislative Bodies at Places unusual, uncomfortable, and distant from the Depository of their public Records, for the sole Purpose of fatiguing them into Compliance with his Measures. He has dissolved Representative Houses repeatedly, for opposing with manly Firmness his Invasions on the Rights of the People. He has refused for a long Time, after such Dissolutions, to cause others to be elected; whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the meantime exposed to all the Dangers of Invasion from without, and Convulsions within. He has endeavoured to prevent the Population of these States; for that Purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their Migrations hither, and raising the Conditions of new Appropriations of Lands. He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary Powers. He has made Judges dependent on his Will alone, for the Tenure of their Offices, and the Amount and Payment of their Salaries. He has erected a Multitude of new Offices, and sent hither Swarms of Officers to harass our People, and eat out their Substance. He has kept among us, in Times of Peace, Standing Armies, without the consent of our Legislatures. He has affected to render the Military independent of and superior to the Civil Power. He has combined with others to subject us to a Jurisdiction foreign to our Constitution, and unacknowledged by our Laws; giving his Assent to their Acts of pretended Legislation: For quartering large Bodies of Armed Troops among us: For protecting them, by a mock Trial, from Punishment for any Murders which they should commit on the Inhabitants of these States: For cutting off our Trade with all Parts of the World:

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For imposing Taxes on us without our Consent: For depriving us, in many Cases, of the Benefits of Trial by Jury: For transporting us beyond Seas to be tried for pretended Offences: For abolishing the free System of English Laws in a neighbouring Province, establishing therein an arbitrary Government, and enlarging its Boundaries, so as to render it at once an Example and fit Instrument for introducing the same absolute Rule into these Colonies: For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments: For suspending our own Legislatures, and declaring themselves invested with Power to legislate for us in all Cases whatsoever. He has abdicated Government here, by declaring us out of his Protection and waging War against us. He has plundered our Seas, ravaged our Coasts, burnt our Towns, and destroyed the Lives of our People. He is, at this Time, transporting large Armies of foreign Mercenaries to compleat the Works of Death, Desolation, and Tyranny, already begun with circumstances of Cruelty and Perfidy, scarcely paralleled in the most barbarous Ages, and totally unworthy the Head of a civilized Nation. He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the Executioners of their Friends and Brethren, or to fall themselves by their Hands. He has excited domestic Insurrections amongst us, and has endeavoured to bring on the Inhabitants of our Frontiers, the merciless Indian Savages, whose known Rule of Warfare is an undistinguished Destruction, of all Ages, Sexes and Conditions. In every stage of these Oppressions we have Petitioned for Redress in the most humble Terms: Our repeated Petitions have been answered only by repeated Injury. A Prince, whose Character is thus marked by every act which may define a Tyrant, is unfit to be the Ruler of a free People. Nor have we been wanting in Attentions to our British Brethren. We have warned them from Time to Time of Attempts by their Legislature to extend an unwarrantable Jurisdiction over us. We have reminded them of the Circumstances of our Emigration and Settlement here. We have appealed to their native Justice and Magnanimity, and we have conjured them by the Ties of our common Kindred to disavow these Usurpations, which would inevitably interrupt our Connections and Correspondence. They too have been deaf to the Voice of Justice and of Consanguinity. We must, therefore, acquiesce in the Necessity, which denounces our Separa-

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tion, and hold them, as we hold the rest of Mankind, Enemies in War, in Peace, Friends. We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the World for the Rectitude of our Intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly Publish and Declare, That these United Colonies are, and of Right ought to be, Free and Independent States; that they are absolved from all Allegiance to the British Crown, and that all political Connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm Reliance on the Protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.

671

THE CONSTITUTION OF THE UNITED STATES OF AMERICA We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. ARTICLE I. section 1. All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. section 2. The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature. No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen. Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, insuch Manner as they shall by Law direct. The number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode Island and Providence Plantations one, Connecticut five, New York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.

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When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies. The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment. section 3. The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote. Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies. No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen. The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided. The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States. The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present. Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

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section 4. The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators. The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day. section 5. Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide. Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member. Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal. Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting. section 6. The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place. No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

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section 7. All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills. Every Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law. Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill. section 8. The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; To borrow Money on the credit of the United States; To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States; To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

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To provide for the Punishment of counterfeiting the Securities and current Coin of the United States; To establish Post Offices and post Roads; To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; To constitute Tribunals inferior to the supreme Court; To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations; To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress; To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards and other needful Buildings;—And To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. section 9. The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight,

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but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person. The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. No Bill of Attainder or ex post facto Law shall be passed. No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken. No Tax or Duty shall be laid on Articles exported from any State. No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State be obliged to enter, clear, or pay Duties in another. No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time. No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State. section 10. No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility. No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Control of the Congress. No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

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ARTICLE II. section 1. The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector. The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President. The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States. No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of the President; neither shall any person be eligible to that Of-

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fice who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States. In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected. The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them. Before he enter the Execution of his Office, he shall take the following Oath or Affirmation:—“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.” section 2. The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment. He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

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section 3. He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States. section 4. The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors. ARTICLE III. section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office. section 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall

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have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed. section 3. Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted. ARTICLE IV. section 1. Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State; And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. section 2. The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime. No person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due. section 3. New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress. The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so con-

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The Constitution of the United States of America / 681

strued as to Prejudice any Claims of the United States, or of any particular State. section 4. The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence. ARTICLE V. The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the year one thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate. ARTICLE VI. All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation. This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

682 / The Constitution of the United States of America

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ARTICLE VII. The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same. Done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and eighty seven and of the Independence of the United States of America the Twelfth. In Witness whereof We have hereunto subscribed our Names,

683

AMENDMENTS TO THE U.S. CONSTITUTION AMENDMENT I. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. [ratified December, 1791] AMENDMENT II. A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. [ratified December, 1791] AMENDMENT III. No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law. [ratified December, 1791] AMENDMENT IV. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. [ratified December, 1791] AMENDMENT V. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law;

684 / Amendments to the U.S. Constitution

Appendices

nor shall private property be taken for public use without just compensation. [ratified December, 1791] AMENDMENT VI. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed; which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence. [ratified December, 1791] AMENDMENT VII. In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law. [ratified December, 1791] AMENDMENT VIII. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. [ratified December, 1791] AMENDMENT IX. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. [ratified December, 1791] AMENDMENT X. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. [ratified December, 1791]

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Amendments to the U.S. Constitution / 685

AMENDMENT XI. The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. [ratified February, 1795] AMENDMENT XII. The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;—The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;—The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.— The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the VicePresident; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the of-

686 / Amendments to the U.S. Constitution

Appendices

fice of President shall be eligible to that of Vice-President of the United States. [ratified June, 1804] AMENDMENT XIII. section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. section 2. Congress shall have power to enforce this article by appropriate legislation. [ratified December, 1865] AMENDMENT XIV. section 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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. section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United

Appendices

Amendments to the U.S. Constitution / 687

States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of twothirds of each House, remove such disability. section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void. section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. [ratified July, 1868] AMENDMENT XV. section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. section 2. The Congress shall have power to enforce this article by appropriate legislation. [ratified February, 1870] AMENDMENT XVI. The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration. [ratified February, 1913] AMENDMENT XVII. The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifica-

688 / Amendments to the U.S. Constitution

Appendices

tions requisite for electors of the most numerous branch of the State legislatures. When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct. This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution. [ratified April, 1913] AMENDMENT XVIII. section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited. section 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation. section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress. [ratified January, 1919, repealed December, 1933] AMENDMENT XIX. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex. Congress shall have power to enforce this article by appropriate legislation. [ratified August, 1920] AMENDMENT XX. section 1. The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such

Appendices

Amendments to the U.S. Constitution / 689

terms would have ended if this article had not been ratified; and the terms of their successors shall then begin. section 2. The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day. section 3. If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified. section 4. The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them. section 5. Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this article. section 6. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of threefourths of the several States within seven years from the date of its submission. [ratified January, 1933] AMENDMENT XXI. section 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

690 / Amendments to the U.S. Constitution

Appendices

section 2. The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited. section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress. [ratified December, 1933] AMENDMENT XXII. section 1. No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. But this Article shall not apply to any person holding the office of President when this Article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term. section 2. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of threefourths of the several States within seven years from the date of its submission to the States by the Congress. [ratified February, 1951] AMENDMENT XXIII. section 1. The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct: A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.

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Amendments to the U.S. Constitution / 691

section 2. The Congress shall have power to enforce this article by appropriate legislation. [ratified March, 1961] AMENDMENT XXIV. section 1. The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax. section 2. The Congress shall have power to enforce this article by appropriate legislation. [ratified January, 1964] AMENDMENT XXV. section 1. In case of the removal of the President from office or of his death or resignation, the Vice President shall become President. section 2. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress. section 3. Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President. section 4. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President. Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written

692 / Amendments to the U.S. Constitution

Appendices

declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office. [ratified February, 1967] AMENDMENT XXVI. section 1. The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age. section 2. The Congress shall have power to enforce this article by appropriate legislation. [ratified July, 1971] AMENDMENT XXVII. No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened. [ratified May 7, 1992]

693

SUPREME COURT JUSTICES AND THE BILL OF RIGHTS Alphabetical listing of all justices who served on the Supreme Court. Their dates of tenure on the Court are given in the second column. Dates marked with asterisks (*) indicate tenures of chief justices; names followed by two sets of tenure dates served as both associate and chief justices. Crosses (†) after dates indicate terms whose justices died in office. Justice

Tenure

Notable stances

Henry Baldwin 1830-1844†

Supporter of states’ rights

Philip P. Barbour

1836-1841†

Defender of sovereignty of states in New York v. Miln (1837)

Hugo L. Black

1937-1971

Defender of Japanese relocation in Korematsu v. United States (1944); outspoken proponent of “total incorporation,” applying first eight amendments to states in Adamson v. California (1947, dissenting); staunch opponent of substantive due process, as in Griswold v. Connecticut (1965, dissent); absolutist on First Amendment; liberal on equal protection

Harry A. Blackmun

1970-1994

Strong defender of generic right to privacy in Roe v. Wade (1973) and Bowers v. Hardwick (1986, dissent); advocate of affirmative action in Regents of University of California v. Bakke (1978, dissent); liberal views of criminal due process

John Blair, Jr.

1790-1795

Defender of judicial review and federal authority

694 / Justices and the Bill of Rights

Appendices

Justice

Tenure

Notable stances

Samuel Blatchford

1882-1893†

Author of earliest opinions defending privilege against self-incrimination in Counselman v. Hitchcock (1892); defender of emerging substantive due process doctrine in Chicago, Milwaukee, and St. Paul Railway Co. v. Minnesota (1890)

Joseph P. Bradley

1870-1892†

Author of first significant interpretation of Fourth and Fifth Amendments in Boyd v. United States (1886); defended statute prohibiting women to practice law in Bradwell v. Illinois (1873)

Louis D. Brandeis

1916-1939

Co-author of influential article on “privacy” in 1890; wrote famous “Brandeis Brief” for Muller v. Oregon (1908); argued that liberty of Fourteenth Amendment went beyond property rights to protect personal freedoms of Bill of Rights in Gilbert v. Minnesota (1920, dissent); applied freedom of speech to states in Whitney v. California (1927); wrote that wiretapping fell under Fourth Amendment in Olmstead v. United States (1928, dissent)

William J. Brennan, Jr.

1950-1990

Important liberal force in the constitutional revolutions of Warren and Burger Courts; defended judicial supremacy in Cooper v. Aaron (1958); expanded protection for press freedom in Roth v. United States (1957) and New York Times v. Sullivan (1964); emphasized protection for symbolic speech in Texas v. Johnson (1989); defended heightened judicial scrutiny for gender-based classifications in Craig v. Boren (1976); opposed capital

Justices and the Bill of Rights / 695

Appendices

Justice

Tenure

Notable stances punishment in Furman v. Georgia (1972); consistently defended privacy rights, abortion rights, and affirmative action

David J. Brewer 1890-1910

Conservative who wrote that “this is a Christian nation” in Holy Trinity Church v. United States (1892); supported substantive due process doctrine but upheld protection for women workers in Muller v. Oregon (1908); defended right of reasonable profit in regulated industries in Reagan v. Farmers’ Loan and Trust Co. (1894); usually defended racial segregation, as in Berea College v. Kentucky (1908)

Stephen G. Breyer

Usually liberal positions on criminal procedures, generic privacy, abortion rights, affirmative action, and federalism; proposed right to die “with dignity” in Washington v. Glucksberg (1997)

1994-

Henry B. Brown 1891-1906

Author of notorious “separate but equal” doctrine in Plessy v. Ferguson (1896); defended property rights and substantive due process, but recognized limits of freedom of contract doctrine in Holden v. Hardy (1898)

Warren E. Burger

Moderate who criticized but failed to reverse Warren-era expansion of constitutional rights; devised three−pronged test for establishment of religion cases in Lemon v. Kurtzman (1971); formulated three-pronged test for obscenity in Miller v. California (1973); held that “gag orders” in criminal trial were last resort in Nebraska Press Association v. Stuart (1976); upheld

1969-1986*

696 / Justices and the Bill of Rights

Justice

Tenure

Burger (cont’d.)

Appendices

Notable stances federal affirmative action program in Fullilove v. Klutznick (1980); allowed Internal Revenue Service to tax racially segregated schools in Bob Jones University v. United States (1983)

Harold H. Burton

1945-1958

Moderate known for careful research and well-crafted opinions. An outspoken opponent of racial discrimination and segregation; upheld state prosecutions of noncapital felonies without appointed counsel in Bute v. Illinois (1948); usually voted to uphold anticommunist policies of Truman administration

Pierce Butler

1923-1939

One of conservative “Four Horsemen”; wrote defense of liberty of contract doctrine in Morehead v. New York (1936); defended constitutionality of priorrestraint of press in Near v. Minnesota (1931, dissent), but strongly condemned use of wiretaps in Olmstead v. United States (1928)

James F. Byrnes 1941-1942

Judicial conservative who wrote sixteen majority opinions during his one term in office; strengthened constitutional right to travel in Edwards v. California (1941)

John A. Campbell

Southerner who defended states’ rights and took moderate position on slavery, while concurring in Scott v. Sandford (1857); resigned after Civil War began and served as assistant secretary of war; as counsel in Slaughterhouse Cases (1873), helped advance doctrine of substantive due process

1853-1861

Justices and the Bill of Rights / 697

Appendices

Justice

Tenure

Notable stances

Benjamin N. Cardozo

1932-1938

Defender of sociological jurisprudence in The Nature of the Judicial Process (1922); defended theory of “selective incorporation” of Bill of Rights in Palko v. Connecticut (1937); critic of freedom of contract doctrine and defender of legislative authority for economic regulations; defended New Deal programs, as in Helvering v. Davis (1937)

John Catron

1837-1865†

Jacksonian Democrat who defended states’ right and slavery; concurred in Scott v. Sandford (1857) but strongly opposed southern secession

Salmon P. Chase

1864-1873*† Abolitionist who served as Abraham Lincoln’s treasury secretary; defended loyalty oath requirements for office holders in Cummings v. Missouri (1867, dissent); defended constitutional right of women to practice law in Bradwell v. Illinois (1873); disagreed with majority’s narrow interpretation of Fourteenth Amendment in Slaughterhouse Cases (1873)

Samuel Chase

1796-1811†

Signer of Declaration of Independence and ardent federalist; only eighteenthcentury justice to reject federal common law of crimes; frequently defended doctrine of judicial review and proposed natural law interpretation of Constitution in Calder v. Bull (1798)

Tom C. Clark

1949-1967

Supporter of exclusionary rule on states in Mapp v. Ohio (1961); banned religious ceremonies in public schools, Abington School District v. Schempp (1963); broadened concept of conscientious objector in United States v. Seeger (1965);

698 / Justices and the Bill of Rights

Justice

Tenure

Appendices

Notable stances

Clark (cont’d.)

overturned criminal conviction because of prejudicial publicity in Sheppard v. Maxwell (1966)

John H. Clarke 1916-1922

Supporter of convictions under Espionage Act of 1918 in Abrams v. United States (1919); defended broad congressional powers to regulate business in Hammer v. Dagenhart (1918)

Nathan Clifford 1858-1881†

Author of opinion that Court could declare congressional statute unconstitutional on grounds other than constitutional text, in Loan Association v. Topeka (1874)

Benjamin R. Curtis

1851-1857

Enunciator of “selective exclusiveness” doctrine of congressional power to regulate commerce, Cooley v. Board of Wardens (1851); wrote Court’s first extended analysis of due process clause in Murray’s Lessee case (1856); his strong dissent in Scott v. Sandford (1857) produced so much rancor that he resigned

William Cushing

1790-1810†

Supporter of early form of judicial review in Ware v. Hylton (1796)

Peter V. Daniel 1842-1860†

Virginian who consistently advocated states’ rights and opposed expansion of federal authority; held expansive view of states’ eminent domain power in West River Bridge Co. v. Dix (1848); wrote that freed blacks could not be citizens in Scott v. Sandford (1857)

David Davis

Friend of Abraham Lincoln who wrote Ex parte Milligan (1866), which disallowed military trials when civil courts were available

1862-1877

Justices and the Bill of Rights / 699

Appendices

Justice

Tenure

Notable stances

William R. Day 1903-1922

Advocate of states’ rights under Tenth Amendment, as in Hammer v. Dagenhart (1918), which overturned federal child labor act; wanted to limit individual liberty of contract claims in Lochner v. New York (1905, dissent); established exclusionary rule in federal Fourth Amendment cases, Weeks v. United States (1914)

William O. Douglas

1939-1975

Outspoken iconoclast known for expansive view of individual liberties; endorsed right of school children not to salute flag in West Virginia Board of Education v. Barnette (1943); reluctantly supported Japanese relocation in Korematsu v. United States (1944); wrote controversial Terminiello v. Chicago (1949), which reversed speaker’s conviction for insulting hostile mob; opposed governmental restrictions on obscenity; argued right of privacy based on “penumbras” of Bill of Rights in Griswold v. Connecticut (1965); recognized claim of trees to standing to bring lawsuits in Sierra Club v. Morton (1972, dissent)

Gabriel Duvall

1811-1835

One of first justices to hold strong antislavery views; invariably supported decisions of John Marshall

Oliver Ellsworth 1796-1800*

Supporter of general expansion of federal courts

Stephen J. Field

Zealous advocate of inalienable rights, especially property rights; crusader for substantive due process as means for protecting businesses from government regulations, as accepted in Allgeyer v.

1863-1897

700 / Justices and the Bill of Rights

Justice

Tenure

Field (cont’d.)

Appendices

Notable stances Louisiana (1897); wrote that government had no constitutional power to force Americans to accept paper money as legal tender in Knox v. Lee (1871, dissent); opposed loyalty oath requirements for elected offices

Abe Fortas

1965-1969

As private lawyer, successfully argued pro bono case, Gideon v. Wainwright (1963), which established right of indigents to counsel in felony cases; interpreted due process clause as broad guarantee of fairness; expanded many due process protections to juvenile offenders in In re Gault (1967); recognized students’ rights to nondisruptive protests in Tinker v. Des Moines Independent Community School District (1969); struck down state prohibition of teaching evolution in Epperson v. Arkansas (1968)

Felix Frankfurter

1939-1962

Advocate of judicial self-restraint, with justices carefully balancing complex constitutional principles; denied that all of Bill of Rights applied to states in Adamson v. California (1947, concurrence); held that states were not required to follow exclusionary rule in Wolf v. Colorado (1949); wanted to allow states to require flag salute rituals, West Virginia Board of Education v. Barnette (1943, dissent); strong opponent of racial segregation; demanded strict separation of church and state in Everson v. Board of Education (1947, dissent); highly subjective interpretation of due process in Rochin v. California (1952)

Justices and the Bill of Rights / 701

Appendices

Justice

Tenure

Notable stances

Melville W. Fuller

1888-1910*

Strong defender of private property; wrote that Tenth Amendment prohibited federal police powers in Champion v. Ames (1903, dissent); accepted racial segregation and wrote that Fourteenth Amendment produced “no revolutionary change”

Ruth Bader Ginsburg

1993-

As lawyer, argued cases before Court that established intermediate scrutiny for gender-based classifications; consistent supporter of affirmative action, abortion rights, and expansive role for federal government; wrote majority opinion in United States v. Virginia (1996), striking down male-only admission policy of publicly supported military school; opposed public funds for special services in religious schools in Agostini v. Felton (1997, dissent)

Arthur J. Goldberg

1962-1965

Supporter of legal equality and rights of criminal defendants; recognized defendant’s right to remain silent in absence of counsel in Escobedo v. Illinois (1964); defended Ninth Amendment rights in Griswold v. Connecticut (1965, concurrence); held that association rights could only be infringed by “compelling state interest,” Gibson v. Florida Legislative Investigation Committee (1963); ruled that foreign travel was protected by Fifth Amendment in Aptheker v. Secretary of State (1964)

Horace Gray

1882-1902†

Supporter of expansive view of congressional powers and attempted to limit applications of substantive due

702 / Justices and the Bill of Rights

Justice

Tenure

Appendices

Notable stances

Gray (cont’d.)

process; accepted citizenship of anyone born in United States, regardless of race or national origin, in United States v. Wong Kim Ark (1898)

Robert C. Grier 1846-1870

Generally supporter of states’ rights view of Tenth Amendment; sanctioned double jeopardy for those who aided runaway slaves in Moore v. Illinois (1852)

John Marshall Harlan

1877-1911

Author of more dissenting opinions that would eventually become law than any other justice; although former slaveholder, opposed racial segregation and dissented in Plessy v. Ferguson (1896); rejected strict applications of freedom of contract doctrine, as in Lochner v. New York (1905, dissent); argued for incorporation of all of first eight amendments into Fourteenth Amendment, as in Hurtado v. California (1884, dissent)

John M. Harlan II

1955-1971

Interpreter of due process clause as body of evolving principles rather than shorthand formula for first eight amendments; opinion in NAACP v. Alabama (1958) was first to protect First Amendment freedom of association; interpreted Smith Act so that prosecution of subversive activities was difficult; used substantive due process to protect privacy in Poe v. Ullman (1961) and later; opposed Miranda restrictions on police interrogations; interpreted Fourth Amendment as requiring “reasonable expectation of privacy,” in Katz v. United States (1967, concurrence)

Justices and the Bill of Rights / 703

Appendices

Justice

Tenure

Notable stances

Oliver Wendell 1902-1932 Holmes

Perhaps most influential twentieth century justice; argued for judicial restraint when applying substantive due process doctrine and rejected generic right of privacy; formulated libertarian “clear and present danger” test for regulating speech in Abrams v. United States (1919, dissent); supported eugenics policies in Buck v. Bell (1927); did not believe that wiretaps were forbidden by Fourth Amendment; formulated modern view of takings clause in Pennsylvania Coal Co. v. Mahon (1922)

Charles Evans Hughes

1910-1916; 1930-1941*

Moderately progressive Republican who strongly defended free expression rights in Stromberg v. California (1931) and Near v. Minnesota (1931); insisted on fair procedures in criminal trials, as in Powell v. Alabama (1932); author of West Coast Hotel Co. v. Parrish (1937), which ended use of substantive due process to overturn economic regulations

Ward Hunt

1873-1882

Usually supporter of legislation protecting rights of African Americans; in circuit trial, rejected Susan Anthony’s claim that Fourteenth Amendment applied to voting rights for women

James Iredell

1790-1799†

Generally defender of states’ rights; dismissed natural law approach to judicial review and argued that Court should overturn statutes only if they contradicted written Constitution in Calder v. Bull (1798)

704 / Justices and the Bill of Rights

Appendices

Justice

Tenure

Notable stances

Howell E. Jackson

1893-1895†

Moderate southerner who supported an expansive role for national government

Robert H. Jackson

1941-1954†

Supporter of national power over that of states; wrote classic defense of freedom of expression in West Virginia Board of Education v. Barnette (1943); balanced expressive freedom with need for public order in Terminiello v. Chicago (1949, dissent); supported vigorous enforcement of Smith Act in cases such as Dennis v. United States (1951); advocated caution when overturning racial segregation; argued for judicial self-restraint in The Struggle for Judicial Supremacy (1941)

John Jay

1789-1795*

Committed nationalist who, as first chief justice, made substantial contributions to development of strong Supreme Court

Thomas Johnson

1792-1793

Author of only one Court opinion

William Johnson

1804-1834†

Holder of view that federal judges had no power to create or enforce commonlaw crimes in United States v. Hudson & Goodwin (1812); vilified by fellow southerners for his broad reading of congressional powers; slave owner who denounced denial of due process to slave rebel Denmark Vessey

Anthony M. Kennedy

1988-

Moderate conservative who was often swing vote, especially on issues of individual liberty and abortion; approved mandatory drug tests when justified for public safety in Skinner v. Railway Labor Executives Association

Justices and the Bill of Rights / 705

Appendices

Justice

Tenure

Notable stances (1989); proposed no-coercion standard for religious establishment cases in Lee v. Weisman (1992); declared that gays must have equal rights to seek governmental protection in Romer v. Evans (1996)

Joseph Lamar

1911-1916†

Ignored free speech claims in Gompers v. Buck’s Stove and Range Co. (1911)

Lucius Q. C. Lamar

1888-1893†

Supporter of broad legislative discretion to formulate public policy, as in Chicago, Milwaukee, and St. Paul Railroad Co. v. Minnesota (1890)

Brockholst Livingston

1807-1823†

Supporter of state prosecutions of seditious libel while on New York Supreme Court

Horace H. Lurton

1910-1914†

Former Confederate officer who supported states’ rights reading of Tenth Amendment

Joseph McKenna

1898-1925

Defender of expansive view of federal police power legislation in cases such as Hoke v. United States (1913) and Adair v. United States (1908, dissent), but found that due process clause prohibited minimum-wage laws in Adkins v. Children’s Hospital (1923)

John McKinley 1838-1852†

Strong supporter of state sovereignty and Tenth Amendment

John McLean

Opponent of slavery who dissented in Prigg v. Pennsylvania (1842) and Scott v. Sandford (1857) but agreed that Congress had constitutional authority to enact fugitive slave law in Jones v. Van Zandt (1847); moderate on states’ rights under Tenth Amendment

1830-1861†

706 / Justices and the Bill of Rights

Appendices

Justice

Tenure

Notable stances

James C. McReynolds

1914-1941

One of “Four Horsemen” with conservative views on civil rights, First Amendment, defendants’ rights, and economic regulations; saw no constitutional necessity for appointment of counsel in capital cases in Powell v. Alabama (1932, dissent); supported prosecution of young people for displaying red flag in Stromberg v. California (1931)

John Marshall

1801-1835*† Remembered as “great chief justice” who established dominant role of Court in constitutional interpretation; defended broad interpretation of congressional powers and narrow view of states’ rights under Tenth Amendment; ruled that Bill of Rights did not apply to states in Barron v. Baltimore (1833); often referred to natural rights in early years

Thurgood Marshall

1967-1991

Committed African American liberal who consistently supported affirmative action programs, abortion rights, and strict application of exclusionary rule; defended broad view of free speech in Police Department of Chicago v. Mosley (1972); held that individuals have right to own obscene materials in private homes in Stanley v. Georgia (1969); argued that death penalty was always unconstitutional in Gregg v. Georgia (1976, dissent); proposed “sliding scale” model of judicial scrutiny in San Antonio Independent School District v. Rodriguez (1973)

Stanley Matthews

1881-1889†

Held that grand jury indictment was not essential under due process clause of

Justices and the Bill of Rights / 707

Appendices

Justice

Tenure

Notable stances Fourteenth Amendment in Hurtado v. California (1884); held that Fourteenth Amendment prohibited legislation with discriminatory results in Yick Wo v. Hopkins (1886)

Samuel F. Miller

1862-1890†

Supporter of narrow interpretation of Fourteenth Amendment so that none of Bill of Rights applied to states in Slaughterhouse Cases (1873); dismissed doctrine of substantive due process

Sherman Minton

1949-1956

Advocate of judicial restraint toward legislative and executive branches; accepted restrictions on free speech and association in interest of national security; upheld New York law that prohibited members of subversive organizations from teaching in public schools in Adler v. Board of Education (1952)

William H. Moody

1906-1910

Holder of an expansive view of congressional power over interstate commerce; refused to apply privilege against self-incrimination to states in Twining v. New Jersey (1908)

Alfred Moore

1800-1804

Author of only one Court opinion

Frank Murphy

1940-1949†

Liberal who asserted that Fourteenth Amendment made all of first eight amendments plus other fundamental rights binding on states; included peaceful picketing as form of free speech in Thornhill v. Alabama (1940); excluded fighting words and obscenity from First Amendment protection in Chaplinsky v. New Hampshire (1942);

708 / Justices and the Bill of Rights

Justice

Tenure

Appendices

Notable stances

Murphy (cont’d.)

denounced “legalization of racism” in Korematsu v. United States (1944, dissent); dissented when Court did not apply Fourth Amendment exclusionary rule to states in Wolf v. Colorado (1949)

Samuel Nelson 1845-1872

Supporter of states’ rights under Tenth Amendment; concurred in judgment in Scott v. Sandford (1857), but did not endorse Taney’s use of Fifth Amendment to overturn Missouri Compromise

Sandra Day O’Connor

1981-

Moderate conservative whose subtle distinctions often decided 5-4 votes; upheld right to abortion but approved regulations not “unduly burdensome,” as in Planned Parenthood v. Casey (1992); allowed affirmative action programs but required “strict scrutiny” test, as in Adarand Constructors v. Peña (1995); allowed police to conduct noncoercive requests to search private belongings in Florida v. Bostick (1991); evaluated establishment cases with government endorsement of religion test, as in Lynch v. Donnelly (1984)

William Patterson

1793-1806

Framer of Constitution who supported supremacy of federal government over states and espoused judicial review doctrine

Rufus W. Peckham

1896-1909†

Laissez-faire constitutionalist who authored best-known substantive due process case, Lochner v. New York (1905); denied that first eight amendments were binding on states, as in Maxwell v. Dow (1900)

Justices and the Bill of Rights / 709

Appendices

Justice

Tenure

Notable stances

Mahlon Pitney 1912-1922

Strong defender of liberty of contract doctrine, as in Wilson v. New York (1917, dissent); took narrow view of defendants’ rights in cases like Frank v. Mangum (1915); rejected freedom of speech claims against Espionage Act of 1917, as in Pierce v. United States (1920)

Lewis F. Powell, Jr.

1972-1987

Moderate “balancer” who often provided swing vote; allowed racial preferences but not quotas in Regents of University of California v. Bakke (1978); limited federal habeas corpus reviews of alleged Fourth Amendment violations in Stone v. Powell (1976); established balancing test for determining speedy trial requirement in Barker v. Wingo (1972); prohibited disproportionately severe penalties in noncapital cases in Solem v. Helm (1983); author of “open fields” exception in Fourth Amendment cases

Stanley F. Reed 1938-1957

Economic liberal but generally conservative on issues of civil rights and liberties; wrote that privilege against selfincrimination did not apply to states in Adamson v. California (1947); was last justice to join unanimous Court in Brown v. Board of Education (1954)

William H. Rehnquist

As law clerk, wrote controversial memorandum defending “separate but equal” doctrine; defended capital punishment and opposed most Warrenera expansions of defendants’ rights; rejected right to abortion in Roe v. Wade (1973) and later cases; denied that Constitution included right to assisted

1972-1986; 1986- *

710 / Justices and the Bill of Rights

Justice

Tenure

Appendices

Notable stances

Rehnquist (cont’d.)

suicide in Washington v. Glucksberg (1997); created public safety exception to Miranda rule in Quarles v. New York (1984); expanded Fifth Amendment property rights in Dolan v. City of Tigard (1994); resurrected states’ rights under Tenth Amendment, as in United States v. Lopez (1995)

Owen J. Roberts

1930-1945

Author of decisions that often appeared to lack consistency; made famous “switch in time” to uphold minimum wage laws in West Coast Hotel Co. v. Parrish (1937); applied freedom of petition to states in Hague v. CIO (1939); held that First Amendment religious freedom was binding on states in Cantwell v. Connecticut (1940); denied that states must provide counsel for indigent defendants in Betts v. Brady (1942); opposed Japanese displacement in Korematsu v. United States (1944, dissent); voted to uphold white primary in Smith v. Allwright (1944, dissent)

Wiley B. Rutledge, Jr.

1943-1949†

Staunch liberal who defended preferred position of First Amendment freedoms in cases like Thomas v. Collins (1945); argued that all of first eight amendments plus other rights were binding on states through Fourteenth Amendment; endorsed Japanese resettlement in Korematsu v. United States (1944)

Edward T. Sanford

1923-1930

Moderate who wrote that freedom of speech guarantee of First Amendment was binding on states in landmark case, Gitlow v. New York (1925); often voted to uphold federal and state regulations of business

Justices and the Bill of Rights / 711

Appendices

Justice

Tenure

Notable stances

Antonin Scalia 1986-

Staunch conservative who advocated textualism in A Matter of Interpretation (1997); denied that Constitution protected right to abortions or generic right of privacy, as in Cruzan v. Missouri Department of Health (1990, concurrence); supported broad protections of private property through takings clause, as in Lucas v. South Carolina Coastal Council (1992); rejected strict scrutiny test for restrictions on religious liberty in Employment Division v. Smith (1990); consistently opposed affirmative action; usually defended freedom of expression, as in flag burning and hate speech cases

George Shiras, Jr.

Frequent supporter of using substantive due process doctrine to overturn economic regulations; supported liberal view of due process rights of individuals, as in Wong Wing v. United States (1896)

1892-1903

David H. Souter 1990-

“Closet liberal” known for his expansive use of substantive due process in right of privacy cases, as in Planned Parenthood v. Casey (1992); wrote Hurley v. Irish-American Gay, Lesbian and Bisexual Group opinion of 1995, allowing private organization to exclude participation by gays

John Paul Stevens

Supporter of increasingly liberal positions on issues of civil liberty, affirmative action, and Fourth Amendment; held that police usually need warrant to enter private home for an arrest in Payton v. New York (1980); argued for single standard of review for all equal protection cases; overturned an anti-indecency

1975-

712 / Justices and the Bill of Rights

Justice

Tenure

Stevens (cont’d.)

Appendices

Notable stances statute for the Internet in Reno v. ACLU (1997); insisted on high wall between separation of church in cases like Wallace v. Jaffree (1985); espoused narrow property rights under takings clause

Potter Stewart

1958-1981

Moderate who often broke tie votes; expanded right to public demonstrations in Edwards v. South Carolina (1963); liberalized Fourth Amendment protections in Katz v. United States (1967); consistently favored strengthening free speech; opposed substantive due process in 1965, but endorsed doctrine in Roe v. Wade (1973, concurrence); held that women had no constitutional right to public funding of abortions in Harris v. McRae (1980); upheld capital punishment with due process in Gregg v. Georgia (1976)

Harlan Fiske Stone

1925-1941; Supporter of presumption of 1941-1946*† constitutionality when examining governmental regulations of business; wrote seminal “footnote four” (1938), suggesting special judicial scrutiny for minority rights and constitutional prohibitions; wrote many liberal dissents, such as Minersville School District v. Gobitis (1940), later accepted by Court’s majority

Joseph Story

1812-1845†

Strong supporter of federal jurisdiction over states, as in Martin v. Hunter’s Lessee (1816); tried to harmonize natural justice and positive law in cases like Le Jeune Eugenie (1822); ardent supporter of private property; author of influential Commentaries on the Constitution (1833)

Justices and the Bill of Rights / 713

Appendices

Justice

Tenure

Notable stances

William Strong 1870-1880†

Defender of right of African Americans to serve on juries in Strauder v. West Virginia (1880); supported laws mandating Christian practices and advocated constitutional amendment to recognize “supreme authority” of Christian revelation

George Sutherland

1922-1938

Intellectual spokesman for substantive due process and property rights, as in Adkins v. Children’s Hospital (1923); a member of conservative “Four Horsemen,” he favored selective application of first eight amendments to states; wrote opinions expanding rights of counsel and free expression, as in Powell v. Alabama (1932) and Grosjean v. American Press Co. (1936)

Noah H. Swayne 1862-1881

Dissenter in Slaughterhouse Cases (1873) who broadly interpreted individual rights under Fourteenth Amendment; defended Lincoln’s policies restricting civil liberties

William H. Taft 1921-1930*

Holder of narrow view of congressional power under Tenth Amendment in Bailey v. Drexel Furniture Co. (1922); articulated “automobile exception” to Fourth Amendment in Carroll v. United States (1925); allowed use of wiretaps without warrant in Olmstead v. United States (1928)

Roger Brooke Taney

1836-1864*† Supporter of greater support for states’ rights and less protection for private property than Marshall Court; applied Fifth Amendment to defend slaveholders’ rights in Scott v. Sandford (1857); condemned President Lincoln’s “arbitrary arrests” in Ex Parte Merryman (1861)

714 / Justices and the Bill of Rights

Appendices

Justice

Tenure

Notable stances

Clarence Thomas

1991-

Conservative who predictably voted to restrict affirmative action, defendants’ rights, and rights of privacy and abortion; expansive views of takings clause and states’ rights under Tenth Amendment; endorsed “neutrality” and “permissible content” tests for aid to religious schools in Mitchell v. Helms (2000); open to natural law considerations

Smith Thompson

1823-1843†

Defender of states’ authority over commerce unless directly conflicting with federal law

Thomas Todd

1807-1826†

Consistent supporter of Chief Justice Marshall on Tenth Amendment and other matters

Robert Trimble 1826-1828†

Usually reliable supporter of Chief Justice Marshall’s views on federalism, but dissented in Ogden v. Saunders (1827)

Willis Van Devanter

One of conservative “Four Horsemen” who consistently voted to support states’ rights and liberty of contract doctrine

1911-1937

Fred M. Vinson 1946-1953*† Conservative on issues of free speech and national security, as in Dennis v. United States (1951); opposed racial segregation in early civil rights cases such as Sweatt v. Painter (1950) Morrison R. Waite

1874-1888*† Supporter of restricting authority of Congress to protect civil rights in United States v. Cruikshank (1876); rejected substantive due process as barrier to government regulations of business in Munn v. Illinois (1877); held that prohibition on polygamy

Justices and the Bill of Rights / 715

Appendices

Justice

Tenure

Notable stances did not violate First Amendment in Reynolds v. United States (1879)

Earl Warren

1953-1969*

Chief justice who presided over unprecedented expansion of individual liberties and civil rights; held that due process clause of Fifth Amendment mandated equal protection and prohibited racial segregation in Bolling v. Sharp (1954); demanded due process principles in congressional investigations in Watkins v. United States (1957); ruled that police must inform detained persons of constitutional rights in Miranda v. Arizona (1966); ruled antimiscegenation laws violated equal protection and substantive liberty in Loving v. Virginia (1967); interpreted Eighth Amendment in terms of “evolving standards of decency” in Trop v. Dulles (1958)

Bushrod Washington

1799-1829†

George Washington’s favorite nephew who liberally defined privileges and immunities of national citizenship in Corfield v. Coryell (1823); enforced Sedition Act of 1798 while riding circuit

James M. Wayne

1835-1867†

Southern slaveholder who concurred in Scott v. Sandford (1857), asserting that Missouri Compromise violated Fifth Amendment; moderate on Tenth Amendment

Byron R. White 1962-1993

Nondoctrinaire pragmatist who supported civil rights, gradually became critic of affirmative action, endorsed many restrictions on obscenity, supported prosecution of flag desecration, rejected idea of newsman’s

716 / Justices and the Bill of Rights

Justice

Tenure

White (cont’d.)

Appendices

Notable stances privilege, favored an accommodationist view on public support of religious schools, advocated limitations on exclusionary rule, opposed requirement of Miranda warnings, dissented in Roe v. Wade (1973), and rejected constitutional protections for homosexual practices in Bowers v. Hardwick (1986)

Edward D. White

1894-1910; Holder of erratic positions on 1910-1921*† governmental powers to regulate economy; held that Fifth Amendment did not apply to Native American courts in Talton v. Mayes (1896); endorsed military conscription in Selective Draft Law Cases (1918)

Charles E. Whittaker

1957-1962

Nonideological conservative who often provided swing vote in 5-4 decisions; one of first justices to apply equal protection clause to voting rights in Gomillion v. Lightfoot (1960, concurrence)

James Wilson

1789-1798†

Framer of Constitution who combined ideas of popular sovereignty and strong national government in Lectures on Law (1790-91); asserted doctrine of judicial review in Hayburn’s Case (1792)

Levi Woodbury 1845-1851†

Holder of opinion that Fugitive Slave Law of 1793 did not violate due process clause of Fifth Amendment in Jones v. Van Zandt (1847)

William B. Woods

Member of Court majority in narrowly interpreting Fourteenth Amendment; wrote that Second Amendment was not binding on states in Presser v. Illinois (1886)

1881-1887†

717

TIME LINE Events and court cases relating to the U.S. Bill of Rights. Date

Event

1215

England: King John recognizes limitations on monarchy and rights of privileged classes in Magna Carta

1606

England: Virginia Charter recognizes that colonies have same liberties and rights of the mother country.

1641

Colonies: Massachusetts legislature establishes a Body of Liberties, the first comprehensive bill of rights in history.

1689

England: English Bill of Rights establishes limits on monarch and expands liberties of privileged classes.

1776

Nation: (June 12) Virginia Convention approves Virginia Declaration of Rights. (July 4) Continental Congress adopts Declaration of Independence.

1777

Nation: (Nov. 15) Congress passes Articles of Confederation and sends them to the states for ratification.

1780

Nation: Convention in Massachusetts drafts a state constitution with a Declaration of Rights.

1781

Nation: (Mar. 1) Articles of Confederation are declared in force.

1783

Nation: (Sept. 3) Great Britain recognizes American independence in Treaty of Paris.

1787

Nation: (May 25) Constitutional Convention opens in Philadelphia. (July 13) Congress passes the Northwest Ordinance. (Sept. 17) Constitutional Convention sends new Constitution to states for ratification.

1788

Nation: (July 2) New national Constitution is ratified and declared in effect.

1789

Nation: (Apr. 30) George Washington is inaugurated first president of the United States. (June 8) James Madison introduces seventeen constitutional amendments in Congress.

718 / Time Line

Appendices

Date

Event

1789

(Oct. 2) Washington sends twelve proposed amendments to the states for ratification.

1791

Nation: (December 15) Virginia is the eleventh state to ratify ten amendments, thereby making them part of the Constitution.

1793

Nation: Congress passes the Fugitive Slave Law.

1796

Cases: (Mar. 7) Court rules in Ware v. Hylton that treaties prevail over conflicting state laws. (Mar. 8) Hylton v. United States further asserts the Court’s power of judicial review.

1797

Nation: (Jan.) Congress receives first petition from fugitive slaves. (Mar. 4) John Adams becomes president.

1798

Nation: (July 14) Congress passes first Alien and Sedition law.

(cont’d.)

Cases: (Aug. 8) The justices discuss the basis of judicial review and natural law in Calder v. Bull. 1801

Nation: (Jan. 20) Adams appoints John Marshall chief justice. (Mar. 3) Sedition Act expires. (Mar. 4) Thomas Jefferson becomes president.

1803

Nation: (Apr. 30) The purchase of Louisiana doubles the size of the United States. Cases: (Feb. 24) Marbury v. Madison establishes the Court’s power to declare congressional legislation unconstitutional.

1810

Cases: (Mar. 16) Fletcher v. Peck is the Court’s first ruling that invalidates a state law as unconstitutional.

1812

Nation: (June 19) U.S. declaration of war against Great Britain begins War of 1812.

1813

Cases: Fairfax’s Devisee v. Hunter’s Lessee ruling asserts Supreme Court’s power over rulings of state courts.

1814

Nation: (Dec. 24) Treaty of Ghent formally ends War of 1812.

1816

Cases: (Mar. 20) Hartin v. Hunter’s Lessee upholds the Supreme Court’s authority to review the decisions by the state supreme courts.

Appendices

Time Line / 719

Date

Event

1819

Cases: (Mar. 3) Dartmouth College v. Woodward enhances protection of corporate property from interference by states. McCulloch v. Maryland establishes broad congressional powers under the Elastic Clause.

1820

Nation: (May 3) Congress passes Missouri Compromise.

1823

Cases: (Mar. 10) Johnson and Graham’s Lessee v. McIntosh upholds federal government’s authority to extinguish Native American title of occupancy.

1824

Cases: (Mar. 2) Gibbons v. Ogden upholds broad congressional powers to regulate interstate commerce.

1825

Nation: (Mar. 4) John Quincy Adams becomes president. Cases: (Mar. 16) The Antelope recognizes the authority of sovereign nations to enact laws permitting the slave trade.

1829

Nation: (Mar. 4) Andrew Jackson becomes president. Cases: (Mar. 20) Wilson v. Blackbird Creek Marsh Company recognizes that states may regulate interstate commerce when Congress allows its commerce power to lie dormant.

1830

Cases: (Mar. 12) Craig v. Missouri invalidates state law emitting bills of credit.

1831

Cases: (Mar. 18) Cherokee Nation v. Georgia rules that Cherokee Nation is a “domestic, dependent nation” rather than a sovereign country.

1832

Cases: (Feb. 20) Worcester v. Georgia holds that federal government has exclusive jurisdiction of Native American territories.

1833

Cases: (Feb. 16) Barron v. Baltimore holds that U.S. Bill of Rights does not apply to the states.

1835

Nation: (July 8) Liberty Bell cracks while being rung during Chief Justice Marshall’s funeral. (Dec. 28) Jackson appoints Roger Taney to be chief justice.

720 / Time Line

Appendices

Date

Event

1837

Cases: (Feb. 12) Charles River Bridge v. Warren Bridge increases power of state legislatures to regulate private corporations. (Feb. 16) New York v. Miln rules that state police powers may cover persons on boats traveling in inland waterways.

1839

Cases: (Mar. 9) Bank of Augusta v. Earle recognizes conditional right of corporations to do business in other states.

1841

Nation: (Apr. 4) President William Henry Harrison dies and John Tyler becomes president. Cases: (Mar. 19) The judges in Groves v. Slaughter fail to agree on congressional authority to regulate slavery under the commerce clause.

1842

Cases: (Jan.) Prigg v. Pennsylvania overturns state laws interfering with the Fugitive Slave Law but holds that state officials cannot be required to enforce the law. (Jan. 25) Swift v. Tyson holds that federal courts can follow principles of general commercial law and disregard decisions by the state courts.

1843

Cases: (Feb. 23) Bronson v. Kinzie overturns debtor-relief laws restricting rights of creditors to foreclose on mortgages.

1847

Cases: (Mar. 5) Jones v. Van Zandt rules that the Fugitive Slave Law does not violate any of the provisions of the Bill of Rights.

1848

Nation: (Mar. 5) Treaty of Guadalupe Hidalgo ends the Mexican-American War, enlarges the size of the country, and intensifies the slave controversy. Cases: (Jan. 31) West River Bridge Co. v. Dix holds that the states’ power of eminent domain is paramount to all private property rights.

1849

Nation: (Mar. 5) Zachary Taylor becomes president. Cases: (Jan. 3) Luther v. Borden holds that definition of “republican form of government is a political question. (Feb. 7) A divided court in Passenger Cases forbids states to tax incoming passengers.

Appendices

Time Line / 721

Date

Event

1850

Nation: (July 9) Taylor dies and Millard Fillmore becomes president. (Aug. 23) Congress passes the Fugitive Slave Law as part of the Compromise of 1850.

1852

Cases: (Feb. 20) Genesee Chief v. Fitzhugh expands federal control over inland waterways. (Mar. 2) Cooley v. Board of Wardens of Port of Philadelphia formulates doctrine of selective exclusiveness, striking a balance between states’ rights and the commerce clause.

1854

Nation: (May 25) Kansas-Nebraska Act overturns the Missouri Comprise and allows settlers in Kansas and Nebraska to decide whether to allow slavery. Formation of the Republican Party.

1856

Cases: Murray’s Lessee v. Hoboken Land and Improvement Co. interprets the due process clause of the fifth amendment as referring to the settled principles of judicial proceedings and asserts they are binding on the executive and legislative branches.

1857

Nation: (Mar. 4) James Buchanan becomes president. Cases: (Mar. 7) Scott v. Sandford rules that the Missouri Compromise violates the property rights of slaveholders under the Fifth Amendment and that persons of African ancestry cannot become U.S. citizens.

1859

Nation: Abolitionist John Brown leads the raid on Harpers Ferry, Va. Cases: (Mar. 7) Ableman v. Booth rules that the procedures of the Fugitive Slave Law of 1850 did not violate any provisions in the Bill of Rights.

1860

Nation: (Dec. 20) South Carolina becomes the first state to secede from the union.

1861

Nation: (Apr. 12) Civil War begins when Confederate troops fire on Union fort in Charleston, S.C. Cases: Kentucky v. Dennison rules that Court lacks power to force states to extradite accused persons (valid until overturned in 1987).

722 / Time Line

Appendices

Date

Event

1862

Nation: (Sept.) Lincoln issues executive order suspending habeas corpus.

1864

Nation: (Dec. 6) Lincoln nominates Salmon P. Chase to succeed Taney as chief justice. Cases: (Jan. 11) Gelpcke v. Dubuque overrules a state supreme court’s interpretation of its own state constitution.

1865

Nation: (Apr 9) Civil War ends with General Robert E. Lee’s surrender to General Ulysses S. Grant. (Apr. 15) Andrew Jackson becomes president as a result of the assassination of Lincoln. (Dec. 24) The Ku Klux Klan is organized in Tennessee.

1866

Nation: (Apr. 9) Congress passes Civil Rights Act over Johnson’s veto. Cases: (Mar. 20) Cummings v. Missouri bans state’s retroactive loyalty oaths for former Confederate soldiers. (Apr. 3) Ex parte Milligan forbids use of military courts over civilians when regular courts are open.

1868

Nation: (July 28) Fourteenth Amendment defines national citizenship, protects rights against state governments, and extends authority of the federal courts over state courts. Cases: Regina v. Hicklin (British) produces the restrictive “Hicklin test,” judging obscenity by the effect of isolated passages on the weakest members of society.

1869

Nation: (Mar. 4) Ulysses S. Grant becomes president. Cases: (Apr. 12) The Court in Ex parte McCardle acquiesces to Congress in determination of appellate jurisdiction. (Nov. 1) Paul v. Virginia allows state laws placing special burdens on out-of-state insurance companies. (Dec. 13) Vesazie Bank v. Fenno upholds congressional power to tax bank notes issued by state-chartered banks.

1870

Nation: (Feb. 3) Fifteenth Amendment extends voting rights.

Appendices

Time Line / 723

Date

Event

1871

Nation: (Mar. 3) Indian Appropriation Act ends making of new treaties with the tribes. (Apr. 20) Civil Rights Act enforces rights in the Fourteenth Amendment.

1873

Cases: (Apr. 14) Slaughterhouse Cases narrowly defines rights under the Fourteenth Amendment and assumes that the privileges or immunities clause does not make any of the Bill of Rights binding on the states.

1875

Nation: (Mar. 1) Civil Rights Act outlaws discrimination in public accommodations. Cases: (Jan. 11) Murdock v. Memphis holds that state supreme courts have the final authority to interpret state constitutions. (Mar. 9) Minor v. Happersett rules that the Fourteenth Amendment does not require states to give women the right to vote.

1876

Cases: (Apr. 30) United States v. Cruikshank reaffirms the doctrine of dual federalism and narrowly interprets those rights protected by the Fourteenth Amendment. (Oct. 1) Munn v. Illinois recognizes that states may exercise their police powers to regulate private businesses.

1877

Nation: (Mar. 4) Rutherford B. Hayes becomes president; Reconstruction ends.

1878

Cases: (Jan. 14) Hall v. DeCuir holds that states antisegregation laws cannot be applied to carriers in interstate commerce.

1879

Cases: (May 5) Reynolds v. United States holds that the First Amendment does not protect a right to practice polygamy.

1880

Cases: (Mar. 1) Strauder v. West Virginia rules that exclusion of African Americans from juries violates the Fourteenth Amendment.

1882

Nation: (May 6) Congress passes Chinese Exclusion Act over President Chester Arthur’s veto, suspending immigration of Chinese laborers until 1892.

724 / Time Line

Appendices

Date

Event

1883

Cases: (Oct. 15) Civil Rights Cases overturn the Civil Rights Act of 1875 and hold that the Fourteenth Amendment applies only to state action.

1884

Cases: (Mar.3) Hurtado v. California endorses a “nonsuperfluous” interpretation of the due process clause, with the logical inference that the enumerated rights of first eight amendments were not binding on the states through the Fourteenth Amendment. (Mar. 3) Ex parte Yarbrough allows federal government to punish individuals for obstructing citizens’ right to vote.

1886

Cases: (Jan. 4) Presser v. Illinois finds that the Second Amendment is not binding on the states and upholds a state law prohibiting groups other than organized militia from parading with weapons. (Feb. 1) Boyd v. United States expands constitutional guarantees against compulsory self-incrimination and unreasonable searches and seizures. (May 10) Santa Clara County v. Southern Pacific Railroad defines corporations as “persons.” (May 10) Yick Wo v. Hopkins overturns discriminatory San Francisco laundry ordinance.

1890

Cases: (Feb. 3) Davis v. Beason allows territory to deny vote to members of religious sect advocating illegal practices. (Mar. 24) Chicago, Milwaukee & St. Paul Railway Co. v. Minnesota rules that due process requires judicial review of economic regulations.

1892

Cases: (Jan. 11) Counselman v. Hitchcock broadly interprets the Fifth Amendment privilege against self-incrimination. (Feb. 29) Budd v. New York reaffirms the authority of state legislatures to regulate businesses “affected with a public interest.”

1896

Cases: (May 18) Talton v. Mayes holds the Bill of Rights is not binding of tribal courts; Plessy v. Ferguson permits racial segregation based on the “separate but equal” principle.

1897

Nation: William McKinley becomes president.

Appendices

Date

Time Line / 725

Event Cases: (Mar. 1) Allgeyer v. Louisiana uses freedom of contact doctrine to overthrow a state law; Chicago, Burlington and Quincy Railroad Company v. Chicago incorporates takings clause so that it applies to the states.

1898

Nation: (Apr. 24-Dec. 10) Spanish-American War results in annexation of Puerto Rico, Guam, and the Philippines. Cases: (Feb. 28) Holden v. Hardy holds that state police powers permit reasonable restrictions on freedom of contract. (Mar. 7) Smyth v. Ames overturns state regulations setting unreasonably low rates. (Apr. 25) Williams v. Mississippi upholds African American’s murder conviction in trial with all-white jury.

1900

Cases: (Feb. 26) Maxwell v. Dow upholds state convictions using information rather than grand jury.

1901

Nation: (Sept. 14) President William McKinley dies and Theodore Roosevelt becomes president.

1903

Cases: (Jan. 5) Lone Wolf v. Hitchcock holds that Congress has plenary power over Native American affairs, including the right to abrogate treaties. (Feb. 23) Champion v. Ames narrowly interprets the Tenth Amendment and authorizes a de facto police power.

1905

Cases: (Apr. 17) Lochner v. New York uses doctrine of substantive due process to overturn statute regulating labor conditions.

1908

Cases: (Jan. 27) Adair v. United States uses a substantive due process interpretation of the Fifth Amendment to strike down a federal law forbidding yellow dog contracts. (Feb. 24) Muller v. Oregon rules that special needs of women justify limiting their work hours. (Nov. 9) Twining v. New Jersey rules that Fifth Amendment privilege against self-incrimination does not apply to the states.

1910

Cases: (May 2) Weems v. United States overturns sentence based on Eighth Amendment for the first time.

1914

Cases: (Feb. 24) Weeks v. United States creates federal exclusionary rule in criminal cases.

726 / Time Line

Appendices

Date

Event

1915

Cases: (Apr. 19) Frank v. Mangum refuses federal relief for defendant convicted of murder in state court under conditions of mob intimidation. (June 21) Guinn v. United States strikes down grandfather clauses.

1917

Nation: (Feb. 5) Congress passes immigration act forbidding Asian immigration. (Apr. 6) United States declares war on Germany and enters World War I. (June 15) The Espionage Act prohibits attempts to interfere with the war effort, including obstruction of the draft. Cases: (June 12) Bunting v. Oregon upholds state’s maximumhour law as a means to promote the health of workers. (Nov. 5) Buchanan v. Warley finds that a state law mandating discrimination in housing violates the due process clause.

1918

Nation: (May 16) Congress passes the Sedition Act, making strong criticisms of the government illegal. (Nov. 11) Armistice ends World War I. Cases: (Jan. 7) Selective Draft Law Cases rules that military conscription does not violate the First or Thirteenth Amendments. (June 3) Hammar v. Dagenhart rules that a federal law restricting child labor violates the Tenth Amendment.

1919

Cases: (Mar. 3) Schenck v. United States upholds prosecutions under the Espionage Act for distributing antiwar pamphlets. (Nov. 10) Abrams v. United States upholds prosecution of anarchists under the Sedition Act, with Oliver W. Holmes’s dissent based on a clear and present danger test.

1922

Cases: (May 15) Bailey v. Drexel Furniture overturns special tax on child labor as violation of Tenth Amendment. (Dec. 11) Pennsylvania Coal Company v. Mahon is first case to hold that regulation of land use may constitute a taking under the Fifth Amendment; United States v. Lanza finds that Fifth Amendment does not prohibit federal and state prosecutions for a single crime.

Appendices

Time Line / 727

Date

Event

1923

Cases: (Feb. 19) Moore v. Dempsey holds that trials influenced by mobs are unfair. (June 4) Meyer v. Nebraska uses substantive due process doctrine to strike down infringement of noneconomic liberty; Frothingham v. Mellon rules that payment of taxes does not establish standing for challenging congressional spending. (June 11) Wolff Packing v. Court of Industrial Relations limits businesses “affected with a public interest.”

1925

Nation: (July) Tennessee teacher John T. Scopes is convicted for teaching evolution. Cases: (Mar.2) Carrolls v. United States allows police to stop and search vehicles with probable cause but without warrant. (Mar. 17) Pierce v. Society of Sisters strikes down state law for infringing on noneconomic liberty. (June 8) Gitlow v. New York applies protection of free speech to the states.

1926

Cases: (Oct. 12) Euclid v. Ambler Realty establishes constitutionality of zoning ordinances.

1927

Cases: (May 2) Buck v. Bell upholds authority of states to require sterilization of persons deemed mentally defective. (May 26) Whitney v. California reaffirms application of First Amendment freedom of speech to the states.

1928

Cases: (June 4) Olmstead v. United States upholds wiretapping outside a home without a warrant.

1931

Cases: (May 18) Stromberg v. California, which overturns a law prohibiting the display of a red flag, is the first time that a state law abridging free expression is found unconstitutional. (June 1) Near v. Minnesota strikes down a state public nuisance law as an unconstitutional “prior restraint” of the press.

1932

Cases: (Mar. 21) New State Ice Co. v. Liebmann overturns state law conferring monopolies to existing businesses. (Nov. 7) Powell v. Alabama overturns death sentence of “Scottsboro boys” because of deficient counsel.

728 / Time Line

Appendices

Date

Event

1933

Nation: (Mar. 4) Franklin D. Roosevelt becomes president; New Deal era (1933-1938) begins.

1934

Cases: (Mar. 5) Nebbia v. New York limits substantive due process restrictions on governmental regulations of small businesses.

1935

Cases: (Apr. 1) Norris v. Alabama overturns second conviction of Socttsboro boys because of racial exclusion of juries.

1936

Cases: (Feb. 10) Grosjean v. American Press invalidates tax on large newspapers. (Feb. 17) Brown v. Mississippi holds that due process clause prohibits use of criminal confessions based on physical coercion. (June 1) Morehead v. New York overturns minimum-wage law based on freedom of contract doctrine.

1937

Cases: (Jan. 4) DeJonge v. Oregon applies First Amendment right of peaceful assembly to states. (Mar. 29) West Coast Hotel v. Parrish holds that minimum wage law does not violate the due process clause. (Apr. 12) National Labor Relations Board v. Jones & Laughlin Steel allows governmental restriction of freedom of contract. (Nov. 12) Palko v. Connecticut refrains from applying double jeopardy principle to the states and asserts “selective incorporation” theory.

1938

Cases: (Mar. 28) Lovell v. Griffin overturns ordinance prohibiting distribution of pamphlets. (Apr. 25) United States v. Carolene Products contains footnote four that advocates heightened judicial protections for minorities and fundamental rights; Erie Railroad Co. v. Tomkins rejects federal common law and overturns 1842 decision. (May 23) Johnson v. Zerbst guarantees indigent defendants counsel in federal criminal proceedings.

1940

Nation: (June 28) Alien Registration (Smith) Act provides criminal punishment for anyone who advocates the violent overthrow of the government. Cases: (Apr. 22) Thornhill v. Alabama rules that peaceful picketing has First Amendment protection. (May 30) Cantwell v. Connecticut incorporates First Amendment religious exercise

Appendices

Date

Time Line / 729

Event clause. (June 3) Minersville School District v. Gobitis upholds law requiring school children to participate in flag ceremonies.

1941

Nation: (Dec. 7) Japanese attack on Pearl Harbor brings United States into World War II. Cases: (Feb. 3) United States v. Darby Lumber Co. ends use of Tenth Amendment as significant restraint on the commerce power of Congress. (Mar. 31) Cox v. New Hampshire allows reasonable time, place, and manner restrictions on assembly. (Nov. 24) Edwards v. California strengthens right to travel.

1942

Nation: Executive Order 9066 authorizes internment of West Coast residents of Japanese descent. Cases: (Mar. 9) Chaplinsky v. New Hampshire accepts “fighting words” limitation on free speech. (June 1) Betts v. Brady upholds state’s conviction of indigent defendant without counsel; Skinner v. Oklahoma forbids sterilization because of criminality or moral turpitude. (July 31) Ex Parte Quirin permits execution of enemy nationals convicted in military courts.

1943

Cases: (May 3) Murdock v. Pennsylvania recognizes First Amendment freedoms as occupying a “preferred position.” (June 14) West Virginia Board of Education v. Barnette reverses Gobitis (1940) and accepts right of school students not to salute the flag. Hirabayashi v. United States holds that military curfew for Japanese Americans does not violate the Fifth Amendment.

1944

Cases: (Apr 3) Smith v. Allwright rules that excluding African Americans from primaries is unconstitutional. (Dec. 18) Korematsu v. United States upholds removing persons of Japanese ancestry as military necessity.

1945

Nation: (Apr. 12) Roosevelt dies and Harry S. Truman becomes president. (Aug. 15) Japanese surrender marks end of World War II.

1946

Cases: (Dec. 9) Ballard v. United States holds that women may not be excluded from federal juries.

730 / Time Line

Appendices

Date

Event

1947

Cases: (Jan. 13) Louisiana ex rel. Francis v. Resweber finds that a second trip to the electric chair is not cruel and unusual punishment. (Feb. 10) Everson v. Board of Education applies establishment clause to the states and allows public funding of transportation of children to parochial schools. (June 23) Adamson v. California affirms that the Fifth Amendment privilege against self-incrimination does not apply to the states; the justices debate incorporation theory.

1948

Cases: (Mar. 8) Illinois ex rel. McCollum v. Board of Education strikes down release time for religious programs in schools. (May 3) Shelley v. Kraemer holds that racial covenants in property sales cannot be legally enforced.

1949

Cases: (May 16) Terminiello v. Chicago limits the fighting words doctrine and strengthens freedom of speech before hostile audience. (June 27) Wolf v. Colorado extends Forth Amendment without the exclusionary rule to the states.

1950

Nation: (June 25) Korean War begins; two days later Truman sends troops to support South Korea. (Sept. 23) Congress passes Internal Security (McCarran) Act over Truman’s veto. Cases: (May 8) American Communications Association v. Douds upholds Taft-Hartley Act requirement for labor unions to swear they are not members of the Communist Party. (June 5) Sweatt v. Painter rules that segregated law schools are unconstitutional if not equal in quality.

1951

Cases: (Jan. 15) Feiner v. New York upholds conviction of street orator presenting a clear and present danger to public safety. (Apr 30) Joint Anti-Fascist Refugee Committee v. McGrath requires due process classifying organizations as subversive. (June 4) Dennis v. United States upholds convictions of communist leaders under the Smith Act with a version of the clear and present danger test that reduces protection.

1952

Cases: (Jan. 2) Rochin v. California holds that evidence obtained in shockingly unfair manner cannot be used in a criminal trial. (Apr. 28) Zorach v. Clauson allows release time for religious

Appendices

Date

Time Line / 731

Event instructions outside the public schools. (May 26) Burstyn v. Wilson rules that film has First Amendment protection.

1953

Nation: (Jan. 11) Dwight Eisenhower becomes president; (July 27) Armistice is signed at Panmunjon, Korea. (Oct. 15) Earl Warren is sworn in as chief justice.

1954

Cases: (May 17) Brown v. Board of Education reverses Plessy (1896) and holds that de jure segregated schools violates the equal protection clause of the Fourteenth Amendment; Bolling v. Sharpe prohibits federally segregated schools under the Fifth Amendment. (Nov. 22) Berman v. Parker defines “public use” in the Fifth Amendment as any policy that reasonably promotes the public interest.

1955

Cases: (May 31) Second Brown decision calls for court supervision for ending of school segregation “with all deliberate speed.”

1956

Cases: (Mar. 26) Ullman v. United States rules that the Immunity Act is consistent with the Fifth Amendment. (Apr. 2) Pennsylvania v. Nelson moves the Court from blanket approval of anticommunist legislation. (Apr. 9) Slochower v. Board of Education of New York overturns dismissal of schoolteacher for refusing to answer congressional questions.

1957

Cases: (June 17) Yates v. United States clarifies the distinction between advocacy of belief and advocacy of action; Watkins v. United States insists that congressional investigations must follow the Bill of Rights when questioning witnesses. (June 24) Roth v. United States narrowly defines obscenity and rejects the Hicklin rule; Mallory v. United States reaffirms the McNabb rule, excluding incriminating statements of a defendant detained without probable cause.

1958

Cases: (Mar. 31) Trop v. Dulles holds that involuntary expatriation is cruel and unusual punishment. (June 16) Kent v. Dulles finds that right to international travel is a protected liberty under the Fifth Amendment; National

732 / Time Line

Appendices

Date

Event

1958

Association for the Advancement of Colored People v. Alabama upholds “freedom of association as an integral part of the First Amendment.

1959

Cases: (June 8) Lassiter v. Board of Elections upholds state literacy test for voters; Barenblatt v. United States upholds contempt conviction of person refusing to testify before a congressional committee.

1960

Nation: (Feb. 2) Black students in Greensboro, N.C., launch sit-in tactic of Civil Rights movement. (May 6) Civil Rights Act of 1960 becomes law.

1961

Cases: (Mar. 12) Hoyt v. Florida upholds murder conviction of woman tried by all-male jury. (June 5) Scales v. United States approves convictions for “active” but not “nominal” membership in Communist Party; Noto v. United States reverses conviction under the Smith Act for lack of “substantial evidence” of a call for violence. (June 19) Mapp v. Ohio modifies Wolf (1949) and requires states to utilize the exclusionary rule under the Fourth Amendment.

1962

Cases: (June 25) Robinson v. California makes the cruel and unusual clause applicable to the states; Engel v. Vitale bans prayer ceremonies in public schools.

1963

Nation: (June) Congress passes Equal Pay Act. (Nov. 22) President John F. Kennedy is assassinated and Lyndon Johnson becomes president.

(cont’d.)

Cases: (Feb. 5) Edwards v. South Carolina expands protections of right to peaceful assembly. (Mar. 18) Fay v. Noia expands opportunities for those convicted in state courts to seek habeas corpus relief in federal courts; Gideon v. Wainwright requires states to provide counsel for indigent defendants in felony trials. (Apr. 22) Ferguson v. Skrupa asserts that the substantive due process doctrine has been repudiated. (June 10) Ker v. California finds that federal Fourth Amendment standards are binding on the states. (June 17) Sherbert v. Verner applies strict scrutiny standards to policies placing indirect burdens on

Appendices

Date

Time Line / 733

Event religious practices; Abington School District v. Schempp prohibits Bible reading ceremonies in the public school.

1964

Nation: (July 2) President Johnson signs Civil Rights Act of 1964. Cases: (Mar. 9) New York Times v. Sullivan requires that libel actions by public officials must be supported by actual malice or a reckless disregard for the truth. (May 18) Massiah v. United States holds that government cannot bypass a defendant’s lawyer after criminal proceedings have begun. (June 5) Mallow v. Hogan establishes that Fifth Amendment privilege against self-incrimination applies to the states; Murphy v. New York rules that incriminating testimony compelled by federal or state government may not be used by the other. (June 22) Aptheker v. Secretary of State expands right to international travel as a liberty protected by the Fifth Amendment; Escobedo v. Illinois affirms an arrested person’s right to remain silent and to obtain counsel. (Nov. 23) Garrison v. Louisiana holds that the Sullivan ruling applies to both criminal and libel action. (Dec. 14) Heart of Atlanta Motel v. United States upholds the Civil Rights Act of 1964 as a legitimate congressional regulation of commerce; Katzenbach v. McClung expands the commerce clause to include a small restaurant that purchased its food locally and served a local clientele.

1965

Cases: (Jan. 18) Cox v. Louisiana provides broad protection for right of peaceful assembly and picketing. (Apr. 5) Pointer v. Texas extends Sixth Amendment right of accused to confront witnesses to states. (Apr. 26) Dombrowski v. Pfister holds that federal courts may enjoin enforcement of excessively vague state statutes. (Apr. 28) Griffin v. California disallows prosecutors from commenting on a defendant’s failure to testify in a criminal proceeding. (June 5) Griswold v. Connecticut overturns prohibitions on contraceptives and establishes a “right of privacy.” (Nov. 15) Albertson v. Subversive Activities Control Board holds that Communists have a Fifth Amendment right to refuse to register under the McCarran Act.

734 / Time Line

Appendices

Date

Event

1966

Cases: (Mar. 31) Memoirs v. Massachusetts narrowly defines obscenity as materials “utterly without redeeming social value.” (Apr. 18) Elfbrandt v. Russell rules that requiring state employees to take loyalty oaths violates the freedom of association. (June 6) Sheppard v. Maxwell strikes down conviction on grounds of excessive publicity during trial. (June 13) Miranda v. Arizona requires arresting officers to inform suspects of their constitutional rights. (Nov. 14) Adderly v. Florida upholds even-handed restrictions on demonstrations in sensitive areas such as jails.

1967

Cases: (Jan. 9) Time v. Hill applies the actual malice standard to libel suits relating to published stories of public interest. (Jan. 23) Keyishian v. Board of Regents strikes down vague loyalty oath requirements for public school teachers. (Mar. 13) Klopfer v. North Carolina extends Sixth Amendment’s speedy trial requirement to the states. (May 15) In re Gault rules that juvenile criminal defendants have many (but not all) rights of adult defendants. (June 12) Wade v. United States overturns use of lineup evidence obtained without counsel present. (Dec. 11) United States v. Robel overturns part of the McCarran Act as an unconstitutional violation of the right of association. (Dec. 18) Katz v. United States applies Fourth Amendment protection to use of electronic equipment penetrating a zone of reasonably expected privacy.

1968

Cases: (May 20) Duncan v. Louisiana incorporates right to jury trial into Fourteenth Amendment. (May 27) United States v. O’Brien limits protection for symbolic speech when government reasonably enforces valid laws not designed to suppress free speech. (June 10) Terry v. Ohio upholds authority of police to “stop and frisk” based on a “reasonable suspicion” of wrongdoing; Flast v. Cohen allows taxpayer to sue the federal government for alleged funding violations of the establishment clause. (Nov. 12) Epperson v. Arkansas finds that laws banning the teaching of evolution violate the First Amendment.

Appendices

Time Line / 735

Date

Event

1969

Nation: (Jan. 20) Richard Nixon becomes president on a platform criticizing the Supreme Court’s liberal interpretations. (June 23) Warren Burger is sworn in as chief justice. Cases: (Feb. 24) Tinker v. Des Moines School District increases students’ rights to free speech and symbolic speech. (Feb. 27) Brandenburg v. Ohio restricts prosecution of subversive speech to advocacy directed at producing imminent lawless action and likely to produce such action. (Apr. 7) Stanley v. Georgia upholds right of individuals to keep obscene materials in a private home. (Apr. 21) Shapiro v. Thompson strikes down one-year residency requirements for welfare recipients. (June 9) Red Lion Broadcasting Co. v. Federal Communications Commission upholds the fairness doctrine. (June 23) Benton v. Maryland extends double jeopardy protection to the states; Chimel v. California allows police to search the area within an arrestee’s immediate control.

1970

Cases: (Mar. 23) Goldberg v. Kelly requires evidentiary hearing before termination of welfare benefits. (Mar. 31) In re Winship interprets due process to require the standard of guilt beyond a reasonable doubt in criminal proceedings for both adults and juveniles. (May 4) Walz v. Tax Commission allows property tax exemptions for religious institutions. (June 22) Williams v. Florida allows reduced jury sizes in most state trials.

1971

Cases: (Feb. 24) Harris v. New York allows confessions in absence of Miranda warnings to be used to impeach a defendant’s testimony. (June 7) Cohen v. California expands constitutional protection for vulgar and offensive speech. (June 14) Graham v. Richardson holds that states’ classifications based on alienage are subject to strict scrutiny but implies that federal classifications may demand lesser scrutiny. (June 21) McKeiver v. Pennsylvania narrowly interprets Gault (1967) as requiring only “fundamental fairness” in juvenile proceedings. (June 28) Lemon v. Kurtzman establishes three-part test for deciding whether governmental programs run afoul of establishment clause. (June 30) New York Times v. United

736 / Time Line

Appendices

Date

Event

1971

States upholds principle of no prior restraint of the press. (Nov. 22) Reed v. Reed is first time that a law is overturned because of gender discrimination.

1972

Cases: (Jan. 10) Johnson v. Louisiana upholds convictions based on nonunanimous jury verdicts in state criminal trials. (Feb. 24) United States v. U.S. District Court rejects claim of president’s authority to use electronic surveillance without search warrants to protect the national security. (Mar. 22) Eisenstadt v. Baird expands right of privacy by overthrowing state law making it a felony to provide contraceptives to unmarried persons. (May 15) Wisconsin v. Yoder holds that states cannot require Amish children to attend high school. (May 22) Kastigar v. United States upholds law requiring grand jury witnesses to testify under use immunity grants. (June 12) Argersinger v. Hamlin expands Gideon ruling on right to counsel (1963) to all criminal trials threatening imprisonment. (June 22) Barker v. Wingo establishes a balancing test for determining a reasonable time for delaying a trial. (June 29) Branzburg v. Hayes rules that First Amendment does not give journalists a special testimonial privilege not enjoyed by others; Furman v. Georgia rules that capital punishment, as practiced, constitutes cruel and unusual punishment.

1973

Cases: (Jan. 22) Roe v. Wade rules that a woman has a constitutional right to terminate an unwanted pregnancy before the fetus acquires viability. (Mar. 21) San Antonio Independent School District v. Rodriguez holds that education is not a fundamental right and that the U.S. Constitution does not require equal funding for students in a district. (May 14) Frontiero v. Richardson rules that discrimination based on sex is contrary to equal protection principle of the Fifth Amendment. (June 21) Miller v. California establishes a three-prong rule for defining obscenity.

1974

Cases: (Jan. 21) Cleveland Board of Education v. LaFleur overturns a mandatory maternity leave and endorses the substantive due process doctrine. (Mar. 25) Belle Terre v. Boraas upholds zoning

(cont’d.)

Appendices

Date

Time Line / 737

Event ordinance limiting unrelated persons from living together in a single-unit dwelling. (June 25) Gertz v. Robert Welch holds that the actual malice standard does not apply to libel suits from individuals who are not public figures; Miami Herald Publishing Co. v. Tornillo rules that states cannot require newspapers to grant right of reply to political candidates.

1975

Cases: (Jan. 21) Taylor v. Louisiana holds that women cannot be excluded from juries even indirectly. (Mar. 19) Weinberger v. Wiesenfeld overturns provision of Social Security Act that awards benefits to widows but not widowers as inconsistent with the equal protection principle of the Fifth Amendment. (June 16) Bigelow v. Virginia overturns state statute prohibiting advertisements of abortion services.

1976

Cases: (Jan. 30) Buckley v. Veleo rules that limiting money that candidates can spend on their own campaigns violates the First Amendment. (Mar. 2) National League of Cities v. Usery expands concept of state sovereignty. (Mar. 29) South Dakota v. Operman upholds authority of police to conduct inventory searches of impounded automobiles. (June 7) Washington v. Davis requires plaintiffs to show discriminatory intent to win suits alleging employment discrimination under the Fifth and Fourteenth Amendments. (June 24) Young v. American Mini Theatres upholds zoning ordinances that significantly restrict locations of sexually oriented businesses. (June 28) Elrod v. Burns holds that patronage dismissals of non-policy-making employees infringe on the right of free association. (June 30) Nebraska Press Association v. Stuart rejects use of gag orders to protect rights of those accused of crimes. (July 2) Woodson v. North Carolina holds that mandatory death penalty laws are inconsistent with the Eighth Amendment; Gregg v. Georgia holds that capital punishment with proper procedures and safeguards is not cruel and unusual. (Dec. 20) Craig v. Boren establishes a heightened or intermediate level of judicial scrutiny for judging the constitutionality of gender-based classifications.

738 / Time Line

Appendices

Date

Event

1977

Cases: (Jan. 11) Arlington Heights v. Metropolitan Housing Development reaffirms that a governmental policy is not unconstitutional simply because it has a disproportionate impact on a particular race. (May 31) Moore v. City of East Cleveland uses the substantive due process doctrine to overturn a local zoning ordinance prohibiting extended families from living together in single-unit residences. (June 27) Bates v. State Bar of Arizona holds that states cannot prohibit lawyers from advertising prices for routine services, based in part on the First Amendment. (June 29) Coker v. Georgia holds that capital punishment for rape is a cruel and unusual punishment.

1978

Cases: (Mar. 21) Ballew v. Georgia holds that juries in state criminal trials must have at least six members. (May 15) Santa Clara Pueblo v. Martinez holds that federal courts may not review claims under the Indian Bill of Rights. (May 23) Marshall v. Barlow’s Inc. finds warrantless inspections by OSHA inspectors inconsistent with the Fourth Amendment. (May 31) Zucher v. The Stamford Daily holds that newspaper offices have no special protections against search and seizure. (June 6) Monell v. Department of Social Services holds that municipalities can be sued for constitutional violations in federal courts but limits municipal liability to matters of “official policy.” (June 26) Penn Central Transportation Co. v. New York holds that most development restrictions on property are not takings under the Fifth Amendment. (June 28) Regents of University of California v. Bakke allows some racial preferences but not rigid quotas in admission policies of educational institutions.

1979

Cases: (Mar. 5) Orr v. Orr applies the Craig test (1976) to overturn a law making only husbands liable for alimony payments. (June 5) Personal Administrator of Massachusetts v. Fenney upholds veterans’ preferences as nondiscriminatory toward women. (June 27) United Steelworkers v. Weber permits private employers to establish affirmative action programs using racial preferences.

Appendices

Time Line / 739

Date

Event

1980

Cases: (Mar. 18) Rummel V. Estelle permits a sentence of life imprisonment for three minor fraud offenses amounting to a total of $229. (Apr. 15) Payton v. New York rules that police need arrest warrants to make nonconsensual entrances into residences to make arrests. (June 30) Harris v. McRae upholds the Hyde Amendment to Medicaid program, which prohibits federal funding for most abortions. (July 2) Richmond Newspapers v. Virginia rules that members of public and press may attend criminal trials even if defendants object; Fullilove v. Klutznick upholds federal public works program using quota set-asides for minority-controlled businesses.

1981

Nation: (Jan. 20) Ronald Reagan, an outspoken conservative, becomes president. Cases: (Mar. 23) Michael M. v. Superior Court of Sonoma County upholds gender-based law that punishes only men for statutory rape. (June 25) Roster v. Goldberg rules that male-only draft registration does not violate the equal protection principle of the Fifth Amendment.

1982

Cases: (June 1) Ross v. United States allows warrantless searches of containers and compartments in automobiles based on probable cause.(June 15) Plyler v. Doe rules against denial of educational services to children of illegal aliens. (July 2) New York v. Ferber holds that child pornography has no protection under the First Amendment.

1983

Cases: (June 15) Akron v. Akron Center for Reproductive Health overturns a city ordinance restricting abortions. (June 28) Solem v. Helm rules against disproportionately severe penalties in noncapital cases. (July 3) Hudson v. Palmer denies Fourth Amendment privacy rights to inmates in prisons. (July 6) Michigan v. Long announces that state courts are assumed to rely on federal law unless a state court clearly demonstrates otherwise.

1984

Nation: (Oct. 12) Victims of Crime Act becomes law. (Oct. 19) Comprehensive Crime Control Act becomes law.

740 / Time Line

Appendices

Date

Event

1984

Cases: (Mar. 5) Lynch v. Donnelly allows governmental sponsorship of a Christmas display that includes both Christian and secular symbols. (May 30) Hawaii Housing Authority v. Midkiff broadly defines “public use” in the Fifth Amendment as a rational relationship to a public purpose. (July 1) New York v. Belton extends the principles of Chimel (1969) to warrantless automobile searches. (July 3) Roberts v. United States Jaycees allows states to prohibit gender discrimination in large private organizations not committed to a particular creed. (July 5) United States v. Leon allows admissibility of criminal evidence seized with invalid warrants when officers act in “good faith.”

1985

Cases: (Feb. 19) Garcia v. San Antonio removes most limits on Congress’s power to regulate interstate commerce. (Mar. 27) Tennessee v. Garner rules that officers may use deadly force only to prevent death or serious bodily harm. (June 4) Wallace v. Jaffree strikes down state law authorizing a moment of silence for meditation or voluntary prayer.

1986

Nation: (Sept. 17) Senate confirms William Rehnquist as chief justice and Antonin Scalia as associate justice, making a more conservative Supreme Court.

(cont’d.)

Cases: (Apr. 30) Batson v. Kentucky restricts prosecutors’ ability to use peremptory challenges to remove potential jurors because of race. (June 30) Bowers v. Hardwick holds that U.S. Constitution does not protect a right to consensual homosexual conduct. 1987

Cases: (Mar. 9) Keystone Bituminous Coal Association v. DeBenedictis narrows the protection of Mahon (1922) and finds that a prohibition on underground mining does not constitute a Fifth Amendment taking. (Mar. 25) Johnson v. Santa Clara County allows a gender preference in an affirmative action program. (Apr. 22) McCleskey v. Kemp upholds Georgia’s use of capital punishment despite statistical evidence that victims’ race influences verdicts. (June 9) First English Evangelical Lutheran Church of Glendale v. Los Angeles rules that zoning

Appendices

Date

Time Line / 741

Event ordinance can constitute a taking under the Fifth Amendment; (June 19) Edwards v. Aguillard strikes down a state law requiring a balanced teaching of evolution and “creation science.” (June 29) Nollan v. California Coastal Commission expands the Fifth Amendment rights of property owners when faced with zoning egulations not justified by a public harm.

1988

Nation: Congress passes Drug-Free Workplace Act and Employee Polygraph Protection Act. (Aug. 10) The Civil Liberties Act of 1988 authorizes reparations for persons of Japanese descent interned during World War II. Cases: (Feb. 24) Hustler Magazine v. Falwell upholds “right of parody” for the press. (June 20) New York State Club Association v. New York upholds state law prohibiting discrimination in most private clubs not committed to particular viewpoints.

1989

Cases: (Jan. 23) Richmond v. J.A. Croson Co. applies strict scrutiny to state and local affirmative action programs with racial preferences. (Feb. 22) DeShaney v. Winnebago Social Services holds that states not liable for many failings of its social workers. (Mar. 21) National Treasury Employees Union v. Van Raab and Skinner v. Railway Labor Executives Association allow general drug-testing programs for employees when justified by the government’s interest in public safety. (June 21) Texas v. Johnson strikes down flag desecration laws as inconsistent with First Amendment. (June 26) Stanford v. Kentucky upholds executions of juveniles over the age of sixteen who commit murder; Penry v. Lynaugh upholds capital punishment for mentally retarded, but legally sane, persons. (July 3) Allegheny County v. American Civil Liberties Union Greater Pittsburgh Chapter holds that religiously themed Christmas displays on public property violate the establishment clause of the First Amendment; Webster v. Reproductive Health Services expands authority of states to restrict abortion services.

1990

Nation: Congress passes Americans with Disabilities Act, Civil Justice Reform Act, and Victims of Child Abuse Act.

742 / Time Line

Appendices

Date

Event

1990

Cases: (Jan. 16) Rutan v. Republican Party of Illinois rules that patronage hiring and firing of low-level government employees violates their rights of free speech. (Feb. 8) Maryland v. Buie establishes a two-stage approach for protective searches of premises during arrests. (Feb. 27) Michigan Department of State Police v. Sitz upholds use of sobriety checkpoints for automobile drivers. (Apr. 17) Employment Division v. Smith limits strict scrutiny protection for religious practices and holds that states are not required to make religious exception for illegal drugs. (Apr. 18) Osborne v. Ohio upholds statutes criminalizing possession of child pornography. (June 11) United States v. Eichman reaffirms Johnson (1989) and overturns the Flag Protection Act of 1989. (June 25) Cruzan v. Missouri Department of Health allows rigorous standards in living will statutes but acknowledges that a competent adult has a constitutional right to refuse medical services even if the result is death. (June 27) Maryland v. Craig exempts youthful witnesses from having to confront accused defendants in trials; Metro Broadcasting v. Federal Communications Commission recognizes broad congressional authority to use race preferences in affirmative action programs.

1991

Cases: (Jan. 14) Masson v. New Yorker Magazine allows pubic persons to win libel suits for a deliberate alteration of material. (Mar. 26) Arizona v. Fulminante rules that a criminal conviction using an involuntary confession is subject to “harmless error” analysis. (Apr. 1) Powers v. Ohio clarifies Batson (1986) to hold that prosecutors may never use peremptory challenges to exclude jurors on the basis of race. (Apr. 16) McCleskey v. Zant restricts second filings of habeas corpus petitions to federal courts in death penalty cases. (May 23) Rust v. Sullivan rules that restrictions on abortion counseling in federally funded birth control clinics do not violate the First Amendment. (May 30) California v. Acevedo allows warrantless searches of closed containers in automobiles based on probable cause. (June 3) Edmonson v. Leesville Concrete Co. expands the Batson (1986) principle to include civil suits. (June 18) Florida v.

(cont’d.)

Appendices

Date

Time Line / 743

Event Bostick upholds police practice of randomly asking individuals in public places for permission to search their belongings. (June 21) Barnes v. Glen Theatre ban on nudity in all public places. (June 27) Payne v. Tennessee allows victim impact statements in capital-sentencing phases of trials.

1992

Cases: (June 24) Lee v. Weisman rules that public schools cannot conduct prayer exercises at graduation ceremonies. (June 22) R.A.V. v. St. Paul strikes down a hate-speech ordinance discriminating on the basis of speech content. (June 29) Planned Parenthood of Southeastern Pennsylvania v. Casey upholds the right to abortion but allows state to legislate restrictions that do not place “undue burdens” on that right; Lucas v. South Carolina Coastal Council expands Fifth Amendment protection of property owners when zoning regulations eliminate all economic value of property.

1993

Cases: (Apr. 21) Brecht v. Abrahamson applies the “harmless error” standard when reviewing criminal convictions with Miranda violations. (June 11) Church of Lukumi Babalu Aye v. Hialeah overturns local ban on animal sacrifices performed for religious purposes; Wisconsin v. Mitchell upholds state law that increases sentences for hate crimes.

1994

Cases: (Apr. 4) Oregon Waste Systems v. Department of Environmental Quality strikes down tax on out-of-state solid waste fees. (June 24) Dolan v. City of Tigard rules against conditioning building permits on contributions of private property without just compensation.

1995

Cases: (Apr. 26) United States v. Lopez asserts the doctrine of “dual sovereignty” in overturning a federal regulation which lacked a “substantial relationship” to interstate commerce. (June 12) Adarand Constructors v. Peña extends Richmond (1989) so that federal programs requiring racial preferences are subject to the “strict scrutiny” standard. (June 19) Hurley v. Irish Gay, Lesbian and Bisexual group of Boston holds that organizers of a private parade have a First Amendment right to exclude groups advocating messages with which they disagree.

744 / Time Line

Appendices

Date

Event

1996

Cases: (May 20) Romer v. Evans strikes down amendment to Colorado state constitution that prohibited local governments from protecting homosexuals from discrimination; BMW of North America v. Gore uses the substantive due process doctrine to overturn a “grossly excessive” punitive damage award. (June 10) Whren v. United States allows temporary detention of motorist upon probable cause of a minor traffic violation, holding that subjective intentions of officers play no role in Fourth Amendment analysis. (June 24) United States v. Usery holds that civil forfeitures do not count as punishment in double jeopardy claims. (June 26) Virginia v. United States holds that Virginia Military Institute may not exclude women.

1997

Cases: (June 23) Kansas v. Hendricks allows violent sexual predators to be confined after their prison sentences are completed; Agostini v. Felton holds that states may pay for public school teachers to provide remedial services to students in parochial schools. (June 25) Boerne v. Flores reaffirms Smith (1990) and strikes down the Religious Freedom Restoration Act of 1993. (June 26) Reno v. American Civil Liberties Union rules that the Communications Decency Act of 1996 violates the First Amendment; Washington v. Glucksberg narrowly interprets Cruzan (1990) and repudiates notion of a constitutional right to assistance in committing suicide. (June 27) Printz v. United States holds that the Tenth Amendment prohibits the federal government from requiring state and local officials to conduct background checks on handgun purchases.

1998

Cases: (June 22) United States v. Bajakajian finds grossly disproportionate use of forfeiture violates the Eighth Amendment; Pennsylvania Board of Probation rules that the exclusionary rule does not apply to evidence used in parole revocation hearings; National Endowment for Arts v. Finley finds that Congress has discretion to require NEA grantees to follow “general standards of decency.” (Dec. 1) Minnesota v. Carter restricts privacy rights of guests in home for purposes of business transactions. (Dec. 12) Knowles v. Iowa finds that

Appendices

Date

Time Line / 745

Event police may not conduct an automobile search incidental to the issuance of a citation.

1999

Cases: (Jan. 12) Wyoming v. Houghton rules that police with probable cause to search vehicles for contraband may search individual packages and containers within the vehicles. (Apr. 5) Mitchell v. United States guarantees right of criminal defendants pleading guilty to remain silent during sentencing phases of their trials. (May 17) Saenz v. Roe rules that the two-tier welfare system violates the right to travel which is a privilege or immunity under the Fourteenth Amendment; Florida v. White permits police to warrantless seizures of vehicles in public places when they have probable cause that the vehicles are forfeitable contraband. (May 24) Wilson v. Layne prohibits media ride-alongs in connection with searches and seizures. (June 10) Chicago v. Morales holds that an antiloitering ordinance is unconstitutionally vague. (June 14) Greater New Orleans Broadcasting Association v. United States expands protection for commercial speech in striking down a ban on commercial advertising. (Oct. 18) James Michael Flippo v. West Virginia allows police to make complete searches of crime scenes and all objects found therein.

2000

Cases: (Jan. 12) Illinois v. Wardlow permits police to pursue, stop, and frisk persons who flee at the mere sight of them. (Feb. 23) Roe v. Ortega frees criminal defense lawyers from having to file appeals after guilty pleas unless the clients specifically ask them to do so. (Mar. 22) Board of Regents, University of Wisconsin v. Southworth allows public universities to charge student activities fees so long as funds are distributed on a content-neutral basis. (Mar. 27) Florida. v. J.L. forbids police from searching persons solely on basis of anonymous tips that they are carrying guns. (Mar. 29) Erie v. Papp’s A.M. expands Barnes (1991) in allowing communities to ban nude dancing without evidence of harmful secondary consequences. (May 15) United States v. Morrison strikes down part of the Violence Against Women Act of 1994 as inconsistent with the Tenth Amendment. (Nov. 28) City of Indianapolis v. Edmond

746 / Time Line

Appendices

Date

Event

1990

rules that a narcotics checkpoint program violates the Fourth Amendment because its primary purpose is criminal investigation rather than roadway safety.

2001

Nation: (Sept. 11) Terrorist attack on the World Trade Center and Pentagon kills more than three thousand people, producing calls for limits on civil liberties.

(cont’d.)

Cases: (Mar. 21) Ferguson v. City of Charleston holds that the Fourth Amendment prohibits nonconsensual testing of pregnant women for drugs if the purpose is to notify the police. (Apr. 18) Shaw v. Murphy holds that prisoners do not have a First Amendment right to provide legal assistance to other inmates. (June 4) Penry v. Johnson holds that jury instructions that do not allow the jury to consider mitigating factors violate the Eighth Amendment. (June 11) Good News Club v. Milford Central School holds that public schools must open facilities equally to religious and nonreligious groups for after-school activities; Kyllo v. United States prohibits police from warrantless use of a thermal detector to discover evidence of illegal activity; Nguyen v. Immigration and Naturalization Service upholds a federal statute that differentiates between immigrants whose mothers are U.S. citizens and those whose fathers are citizens. (June 28) Zadvydas v. Davis holds that the government may not detain deportable aliens indefinitely simply because no country will accept them; Palazzolo v. Rhode Island allows property owners to challenge zoning regulations that took place prior to transfer of title; Boy Scouts of America v. Dale rules that private organizations have a First Amendment right to establish moral criteria that exclude homosexuals from leadership positions.

747

GLOSSARY Absolutism, First Amendment. Literal reading of the words “no law” as a prohibition on any governmental limits on the enumerated rights. Accommodation of religion. Policy advocated by people who interpret the establishment clause as not requiring a “wall of separation” between religion and government. Actual malice. Libel in which material is published with knowledge that it is false or with reckless disregard toward its truthfulness. Amicus curiae. Latin for “friend of the court.” A document filed by a person or organization not directly involved in the litigation in order to supply arguments and evidence supporting one side of the dispute. Appellant. Party that loses in a lower court and attempts to have the judgment reversed in a higher court. Appellee. Party that prevails in the lower court and then responds when the case is taken to a higher court by an appellant. Association, freedom of. Fundamental right to associate with other people and organizations without unwarranted government restrictions. The Supreme Court has recognized that the right is implicitly protected by the First Amendment. Attorney-client privilege. Right of a person not to disclose any matters discussed with an attorney in the course of professional consultation. Balancing test. Judicial approach in which a court weighs the relative importance of competing legal principles and governmental interests. In cases falling under the minimal scrutiny approach, the civil rights and liberties of the individuals are balanced against the reasonable interests of the government. Bifurcated trial. Division of a trial into separate phases for determining guilt and punishment. Bill of attainder. Legislative act inflicting punishment without a trial on named individuals or the members of a group. Brandeis Brief. Any legal argument that emphasizes sociological and economic evidence more than traditional legal materials; term derives from brief written by then-attorney Louis D. Brandeis in 1908. Broad construction. Interpretation that goes beyond the literal meaning of the words in a legal text. Burden of proof. Obligation of presenting enough evidence to establish the truthfulness of an assertion. In a civil trial, the plaintiff has the bur-

748 / Glossary

Appendices

den of providing proof by a preponderance of the evidence, while in a criminal trial, all the elements of the crime must be proved “beyond a reasonable doubt.” Capital offense. Felony that may be punished by the death penalty. Case law. Rules and principles derived from judicial decisions, including constitutional and statutory interpretations. Case law is very important in countries having the common-law tradition. Case or controversy requirement. Principle, found in Article III of the Constitution, extending federal judicial power to actual legal disputes, not to hypothetical or abstract questions. Censorship. Narrowly defined, a governmental action preventing something from being published or said; broadly defined, any governmental restriction or punishment for expression. Certiorari. Latin for “to make certain.” A writ in which a higher court orders an inferior court to send up the record of a particular case. Citation. Standard form used to indicate where to find a statute or a court case. For example, the citation of Mapp v. Ohio is 367 U.S. 643 (1961), indicating that the case is found in volume 367 of United States Reports beginning on page 643. Civil law. This term is used in two sense. In one sense, it refers to laws that relate to relationships between private parties, in contrast to criminal law. In its other sense, it refers to the legal tradition derived from Roman law, in contrast to the common-law tradition. Civil liberties. Freedoms from government control or restraint, especially those freedoms guaranteed in the Bill of Rights. Civil rights. Positive rights protected by the government, especially those rights found in the equal protection clause of the Fourteenth Amendment and the Civil Rights laws. Civil Rights laws. Federal and state statutes designed to prevent invidious discrimination in areas such as employment, education, public accommodations, and voting rights. Civil suit (civil action). Judicial proceeding relating to private interests, in contrast to a criminal prosecution. Class-action suit. Lawsuit brought in behalf of all persons sharing similar circumstances with those of the plaintiff. Commerce. Broad term that refers to trade, traffic, transportation, communication, or intercourse by way of trade or traffic. Common law. Ever-changing body of principles and rules that have evolved from prevailing customs and judicial decisions rather than

Appendices

Glossary / 749

from legislative statutes. The common-law tradition originated in the British courts and was established in Great Britain’s North American colonies long before the U.S. Constitution was written. Compelling state interest test. Standard that requires the government to demonstrate an extremely important objective with narrowly tailored means when interfering with a fundamental right, as in First Amendment and equal protection cases. It is also called the strict scrutiny test. Comstock laws. Series of nineteenth century statutes, promoted by Anthony Comstock, which made it a crime to send “indecent” or “obscene” materials, including information about family planning, through the U.S. mail. Only those portions of the law meeting the modern definition of “obscenity” are still valid. Concurrent jurisdiction. Judicial authority that is shared by different courts of law, especially between federal and state courts. Concurring opinion. Written statement of a judge or justice who agrees with the decision of the majority but writes separately in order to emphasize a particular matter or to disagree with the reasoning used in the opinion of the court. Confrontation. Refers to the Sixth Amendment right of criminal defendants to observe the testimony of prosecution witnesses and to crossexamine them. Constitution. Supreme law of a country defining the structures and prerogatives of governmental institutions and the legal rights of individuals. Constitutional democracy. System in which political leaders are chosen in free elections and there are recognized and enforced limits on the exercise of governmental power. Cooperative federalism. Modern conception of the federal system in which powers and functions are shared between the federal and state governments. Counsel. Lawyer authorized to represent a party. Courts of appeals. At the federal level, those constitutional courts having appellate jurisdiction over decisions by district courts except in the few cases in which there is a right to a direct appeal to the Supreme Court. Creationism. Belief in a literal reading of the first two chapters of the Bible, thus rejecting the theory of biological evolution. Crime. Act which is classified as either a misdemeanor or a felony in the penal code and which government may punish as an offense against society.

750 / Glossary

Appendices

Criminal law. Body of substantive law defining and providing for the punishment of crimes, in contrast to civil law, which applies to relationships between private parties. Custodial interrogation. Questioning by the police of a suspect held in custody. Defendant. Party being sued in a civil case or charged with a crime in a criminal case. At the appellate level, the party moved against is called the respondent or appellee. Dictum. Statement in a judicial opinion that is not a part of the actual decision and is not binding as precedent. Dissenting opinion. Written statement by a judge or justice who disagrees with a decision reached by the majority. District courts. In the federal system, the trial courts with original jurisdiction. Docket. Schedule of cases awaiting action in a court. Double jeopardy. Trying of a person twice for the same crime in the same jurisdiction. Dual sovereignty. Theory of federalism holding that the national and state governments are sovereign in their respective spheres and that the national government must not invade a sphere reserved to the states by the Tenth Amendment. Due process of law. In its first sense, this term refers to the requirement that government must use fair and established procedures whenever it deprives a person of life, liberty, or property. In its second sense, it is the requirement that laws must be fair and reasonable in substance as well as in procedures. Eminent domain. Authority to take property for a public purpose by providing just compensation, as stipulated in the takings clause of the Fifth Amendment. Enumerated powers. Authority explicitly given to government, as in Article I, section 8, of the Constitution. Enumerated rights. Those liberties and rights explicitly mentioned in the Constitution, especially in the first eight amendments. Equity. Historically, a system of jurisprudence developed in England to supplement the common law by emphasizing principles of fairness rather than the letter of the law. Establishment clause. Statement in the First Amendment prohibiting any direct governmental support or favoritism for a religious institution. The interpretation of the clause is controversial.

Appendices

Glossary / 751

Ex parte. Latin for “from one side.” A hearing in which only one party to a dispute is present, especially a hearing to consider a petition for a writ of habeas corpus. Ex post facto law. Latin expression, meaning “after the fact,” a for a statute that retroactively criminalizes an action that was legal when it occurred or increases punishment for a criminal act after it is committed. Excessive bail. Unreasonably large sum of money imposed as a requirement for a defendant to be released before a trial. Exclusionary rule. Constitutional interpretation holding that evidence obtained by illegal means cannot be introduced by the prosecution in a criminal trial. Exculpatory evidence. Information tending to exonerate a person of guilt or blame. Exigent circumstances. Emergency situation demanding immediate action, which allows the police to enter private property without a warrant. Federal question (national question). Legal issue that involves the U.S. Constitution, congressional legislation, or a treaty. Federal system (federalism). Constitutional arrangement that distributes political powers between national and regional governments. Felony. Serious crime that carries a possible penalty of at least a year in prison. Fighting words doctrine. Principle that insulting utterances such as racial epithets directed at a person are not protected by the First Amendment if they are inherently likely to provoke a violent response from an average addressee. Fleeing felon rule. Old standard that allowed the police to shoot and kill individuals suspected of having committed a felony if they fled to avoid arrest. Ruled unconstitutional in Garner v. Tennessee (1985). Free exercise clause. First Amendment liberty to practice one’s religious convictions without governmental restraints. Frisk. Precautionary pat-down of a suspect for weapons in order to protect an officer and other persons. Fruit of the poisoned tree. Evidence obtained directly or indirectly from prohibited police conduct, so that it falls under the exclusionary rule. Fundamental rights. Those rights, regardless of whether they are explicitly mentioned in the Constitution, that the courts have decided are essential to liberty and human dignity, including First Amendment freedoms, the right to vote, and the right to privacy.

752 / Glossary

Appendices

Gag order. Judge’s instructions requiring certain parties to refrain from speaking publicly or privately about a particular trial. Good faith exception. Principle that the prosecution may introduce evidence acquired by the police in an invalid search and seizure when the police followed established procedures and reasonably believed their actions were authorized. Habeas corpus, writ of. Latin for “you have the body.” An order to a custodial officer to bring a person held in custody before a judge in order to explain the legal justification for holding the person. Harmless error. Procedural or substantive mistake that does not affect the final result of a judicial proceeding. Hate crimes. Crimes in which a victim is chosen on the basis of race, ethnicity, religion, gender, or sexual orientation. The Supreme Court upheld augmented penalties for hate crimes in Wisconsin v. Mitchell (1993). Hate speech. Offensive communication expressing disdain for persons of ethnic, religious, or other social categories. The Supreme Court prohibited punishment for most forms of hate speech in R.A.V. v. St. Paul (1992). Hicklin rule. Also known as “Hicklin test.” Obsolete standard for judging obscenity, taken from a British case, Regina v. Hicklin (1886), that allowed governments to proscribe an entire literary work if it contained even one isolated section that might be judged to “tend” to “deprave and corrupt” children. In Roth v. United States (1957), the U.S. Supreme Court ruled that the Hicklin test was inconsistent with the First Amendment. Higher law. Idea that natural law or inherent rights take precedence over humanly enacted laws. Hot pursuit. Situation in which a police officer is allowed to pursue a fleeing suspect into a protected area without a search warrant. Hyde Amendment. Law, named after Representative Henry Hyde, prohibiting the use of federal welfare funds for the payment of nontherapeutic abortions. Impoundment. Seizure and retaining of property, such as a weapon or vehicle, involved in a crime. In forma pauperis. Latin for “in the manner of a pauper.” A waiver from court fees and certain legal expenses in order to allow a poor person to have access to a court of law. The most famous example is Gideon v. Wainwright (1963).

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Glossary / 753

In re. Latin for “in reference to.” A designation used in judicial proceedings when there are no formal adversaries. Inadmissible. Refers to materials that the established rules of law do not allow to be used as legal evidence in a trial. Incitement standard. Doctrine that government cannot punish seditious speech unless it is directed at provoking illegal action which is likely to occur; established in Brandenburg v. Ohio (1969). Incorporation (or absorption). Doctrine under which most liberties in the Bill of Rights have been “incorporated” or “absorbed” into the due process clause of the Fourteenth Amendment so that they are applicable to state and local governments. Indictment. Formal charge by a grand jury against a person for a particular crime. Inevitable discovery. Doctrine that illegally obtained evidence is admissible in a criminal trial if it appears extremely likely that the evidence would have been discovered by legal means; accepted by the Supreme Court in Nix v. Williams (1984). Information. Formal accusation of a crime issued by a prosecutor in order to initiate a criminal trial without a grand jury indictment. Because the grand jury requirement of the Fifth Amendment has never been incorporated, several states allow prosecutions to be initiated by information. Injunction. Judicial order prohibiting or requiring certain acts by designated persons. Intermediate scrutiny. Judicial standard requiring government to justify a challenged policy by demonstrating its substantial relationship to an important government interest. Courts use the standard to scrutinize allegations of gender discrimination. Interpretivism. Attempt to determine the meanings conveyed by the text itself, without reference to non-textual considerations such as natural rights or philosophical theory. Inventory search. Authority of the police to make an administrative listing of articles following the arrest of a person or the impoundment of a vehicle. Jim Crow. Legislation and customs in the South upholding racial segregation and white supremacy, in effect from the late nineteenth century until passage of the Civil Rights laws of the 1960’s. Judgment of the court. Court’s official ruling in a particular case or controversy, excluding the reasoning used in the ruling.

754 / Glossary

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Judicial restraint. Approach based on the theory that judges should not base decisions on their own ideas about “wise” or “just” public policy, and that they should not overturn legislative acts unless clearly unconstitutional. An alternative approach is “judicial activism.” Judicial review. In American constitutional law, this term refers to the authority of a court to invalidate legislative and executive acts when they are found to be inconsistent with constitutional principles. In a more general sense, it refers to the review of any issue by a court of law. Jurisdiction. Legal authority of a court to hear and to decide a particular case or controversy. Just compensation clause. Fifth Amendment’s requirement of fair payment for property taken under the eminent domain power. Justiciable question. Legal issue that can be appropriately and effectively decided in a court of law. Laissez-faire constitutionalism. Ideological perspective that opposes governmental regulations of the economy except when necessary to protect property or public safety. The approach was often defended by the substantive due process doctrine before the New Deal period. Least restrictive means test. Requirement that a governmental policy interfering with a fundamental right must be the least burdensome means of achieving the objective. Lemon test. In Lemon v. Kurtzman (1971), a three-part requirement that public aid to religious schools must have a secular purpose, a primary effect that neither advances or inhibits religion, and no excessive entanglement between government and religion. Libel. Written defamation of another person’s character or reputation. Liberalism. In twentieth century America, an ideology supporting positive uses of government to promote equality and liberty. In the nineteenth century, the term often referred to a lack of economic restraints. Libertarianism. Ideology that stresses individual freedom as the highest good and distrusts government. Litigant. Party to a lawsuit. Living Constitution. Idea that the meanings of the Constitution change with the times, and that judicial interpretations should take into account current social needs and attitudes. Living will. Legal document in which a person determines the conditions for the withholding of life-sustaining treatment in the event of an irre-

Appendices

Glossary / 755

versible condition that will cause death when the person is no longer legally competent to make decisions. Magistrate. Judge with minor or limited authority. Mere evidence rule. Discarded rule which held that in a lawful search the police could seize only the fruit of a crime and not other items. Merits. Substantive issues of a legal dispute, as distinguished from procedural or jurisdictional issues. Militia. Organization of citizen-soldiers who are not in a standing army but are available as a military force in emergencies. Miranda warning. Notice to a detained suspect by a police officer advising the person of the rights to remain silent and to have the assistance of counsel. Misdemeanor. Crime with a maximum penalty of one year or less in jail; less serious than a felony. Moot question. Status of a lawsuit that no longer involves a justiciable controversy either because the issue has been resolved or the conditions have so changed that the court is unable to grant the requested relief. Natural rights. Idea that all governments at all times have the obligation of respecting particular human rights, based on either a divine plan or common characteristics of humans. Necessary and proper clause (elastic clause). Authority of Congress under Article I, section 8 to utilize appropriate means for achieving the enumerated powers in the section. A broad interpretation of the clause tends to conflict with a states’ rights view of the Tenth Amendment. Obiter dicta. Latin for “said in passing.” Incidental statements in a court’s opinion that are not necessary to support the decision and are not binding as precedent. Obscenity. Sexually explicit materials that are not protected by the First Amendment according to the three-prong test of Miller v. California (1973). Open fields doctrine. Principle that privacy rights under the Fourth Amendment do not apply to unoccupied areas outside the immediate yard of a private home. Opinion of the Court. Opinion endorsed by a majority or a controlling plurality of the participating justices. It both announces the decision and explains the rationale for the decision. Original intent. Meaning of a document according to the person or persons who produced it. The concept of “original understanding” refers

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more to the pubic perception of the document. There is much disagreement about the role of “originalism” in constitutional interpretation. Overbreadth doctrine. Principle that governmental policies that directly or indirectly restrict constitutional rights are unconstitutional unless they are narrowly tailored to advance a sufficiently important governmental interest. Overrule. Action of a court that explicitly reverses or makes void an earlier decision about the same legal issue by the same court. Penumbra. Theory that the Constitution casts partial shadows that expand constitutional protection to include broad values such as privacy; associated especially with Justice William O. Douglas. Per curiam. Latin for “by the court.” An unsigned or collectively written opinion by a court. Peremptory challenge. Right of an attorney to exclude a prospective juror without explaining the reasons for doing so. Petit jury. Small group of persons, normally twelve in number, that hears a trial and renders a verdict. Petitioner. Party seeking relief in a court of law. Petty (petit) offenses. Minor crimes that are punished by fines or short jail sentences. The Supreme Court has held that a jury trial is not required if the maximum penalty is less than six months. Plain meaning rule. Principle that the words of constitutional and statutory texts should be interpreted according to the common meanings of ordinary language. Plain view rule. Doctrine that allows a police officer to seize contraband that is readily visible to the officer’s naked eye, so long as the officer is legally in the place where the contraband is observed. Plaintiff. Party who initiates a civil action or sues to obtain a remedy for an injury. Plea bargain. Agreement between a criminal defendant and a prosecutor whereby the defendant pleads guilty in return for a reduction in the charges or the recommended punishment. Plurality opinion. Opinion that receives the highest number of votes in an appellate court but without a majority of the judges. Police power. Recognized authority of the states to protect the public’s safety, health, morality, and welfare. The national government has gradually acquired overlapping prerogatives by way of the commerce and welfare clauses.

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Political speech. Communication about public affairs that is considered to have the highest level of First Amendment protection. Pornography. Broad term that refers to sexually oriented materials ranging from constitutionally protected forms of “indecency” to unprotected “obscenity.” Precedent. Prior decision resolving a legal issue that serves as a model or guide for deciding cases involving the same or a similar issue. Preferred freedoms doctrine. Idea that First Amendment freedoms should have priority among constitutional rights and liberties. Although influential in the 1940’s, the doctrine has generally been replaced by that of “fundamental rights.” Preponderance of evidence. Standard of proof in civil cases, requiring evidence that an assertion is more probable than a contrary assertion. Preventive detention. Practice of denying bail to a person awaiting trial on the grounds that the person’s release would endanger the public safety. The practice was upheld in United States v. Salerno (1987). Prior restraint. Most extreme form of government censorship, restraining expression before its publication or broadcast. Privacy, right of. Constitutionally protected liberty to engage in intimate personal conduct and to exercise personal autonomy without unjustified governmental interference. Also, particular kinds of privacy that are protected by federal and state statutes and the common law. Privileges and immunities clauses. The first of these clauses appears in the original Constitution’s Article IV, which contains the positive assertion that citizens of each state “Shall be entitled to all Privileges and Immunities of citizens in the several States.” A second clause appears in the Fourteenth Amendment’s prohibition on states making or enforcing “any law which shall abridge the privileges or immunities of citizens of the United States.” There is much evidence that one of the original purposes of the latter was to make portions of the Bill of Rights binding on the states. Probable cause. Sufficient evidence to induce a reasonable person to conclude that it is highly likely that particular evidence will be found in a specific place or that an individual has committed a crime. Proportionality. Extent to which a particular punishment is commensurate with the harm done in a criminal act, or proportional to the penalties given for other crimes of similar magnitude.

758 / Glossary

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Public safety exception. Immediate threat to the public’s safety that allows police officers to ask suspects particular questions before giving the Miranda warnings. Punitive damages. In a civil suit, a monetary award that is added to payment for compensatory damages in order to punish the defendant and serve as a deterrent. Race-conscious remedy. Judicial remedy to race discrimination that specifically takes race into account. Rational basis test. Standard requiring that a challenged law must bear a reasonable relationship to a legitimate governmental interest. This test is used when a case does not involve a suspect classification or a fundamental right. Real evidence. Actual object that is used as evidence, rather than a description by a witness. Reasonable doubt. Degree of uncertainty that would lead a prudent person of sound mind to hesitate to make a decision of personal significance. Reasonable expectation of privacy. Person’s right to expect that activities in certain places are private, so that government agents cannot intrude into such places except under the provisions of the Fourth Amendment. Reasonable suspicion. Objective circumstances that lead a prudent person to think that a person is likely involved in criminal activity; more than a hunch but less than probable cause. Reasonableness. Legal standard attempting to determine what decisions and actions would be expected of a prudent and reasonably intelligent person within a particular set of circumstances. Many areas of the law evaluate actions according to the “reasonable person” standard. Rebuttable presumption. Presumption in law that can be refuted by adequate evidence, as distinguished from an irrebuttable presumption that cannot be refuted by evidence. Regulatory taking. Government regulations that eliminate the useful value of private property, requiring compensation under the Fifth Amendment. Reserved power. Power retained by the states because it is not explicitly or implicitly delegated to the national government in the U.S. Constitution.

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Restrictive covenant. Contract that prohibits transfer of property to one or more classes of persons, usually minorities. Governmental enforcement was forbidden in Shelley v. Kraemer (1948). Ripeness. Status of a case that is ready for adjudication by a court. An issue is not “ripe for review” before the Supreme Court unless there is an actual case or controversy and the parties have exhausted all other routes of appeal and resolution. Rule of four. Principle that the Supreme Court will not review a case unless four justices vote to accept it. Saving construction. Doctrine that the courts, given two plausible interpretations of a statute, will choose the one that allows the statute to be found constitutional. Seditious libel. Strong criticisms or false statements about government that were sometimes prosecuted as crimes, as in the Sedition Act of 1798. Seditious speech. Communications intended to incite insurrection or overthrow of the government. Selective incorporation. Practice of making applicable to the states those provisions of the Bill of Rights considered fundamental or essential to a regime of ordered liberty. Self-incrimination. Declaration or action by which persons implicate themselves in a crime; prohibited by the Fifth Amendment and provisions of most state constitutions. Separation of church and state. Interpretation of the First Amendment requiring a “wall of separation” between religion and government. Slander. Speaking of false and malicious words that defame the reputation of another person or group. Solicitor general. High official of the Department of Justice who argues the government’s position before the Supreme Court. Sovereignty. Supreme political authority that is exercised by an independent country. In additional to the sovereignty of the national government, the states and the Indian tribes retain sovereignty in particular spheres. Standing to sue. Status of a party having the right to bring legal action because of a direct harm. Stare decisis. Latin for “let the decision stand.” The common-law doctrine that a legal principle settled in a judicial decision should be followed as a precedent in future cases presenting the same principle. The Su-

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preme Court is not required to practice the doctrine, especially in regard to constitutional issues. Statute. Generally applicable law enacted by a legislature, to be distinguished from constitutional law, common law, administrative law, or case law. Strict construction. Literal or narrow reading of the words of a document, especially the Constitution. Strict necessity, doctrine of. Doctrine that a court should consider a constitutional issue only when necessary to decide a particular case. Strict scrutiny. See Compelling State Interest Test. Subpoena. Latin for “under penalty.” A judicial order requiring a person to appear before a grand jury, a court, or a legislative hearing. Supremacy clause. Statement in Article VI declaring that the supreme law of the land is the Constitution as well as federal legislation and treaties consistent with it. Suspect classification. Government categorization of people based on characteristics such as race or national origin, resulting in a special benefit or disadvantage. Symbolic speech. Act that expresses a message symbolically rather than through spoken or written language, such as desecration of the flag. Also called “expressive conduct.” Terry stop. Limited detention based on a reasonable suspicion that a person is likely involved in illegal conduct, including a limited search of the person if the officer reasonably suspects that the person might be armed and dangerous. From Terry v. Ohio (1968). Textual analysis. Approach to interpretation that concentrates on the language in a legal text rather than on non-textual considerations. Tort. Willful or negligent injury to a person or property, which is a common basis for a civil lawsuit. Total incorporation. Judicial doctrine holding that all of the first eight amendments should be incorporated into the Fourteenth Amendment and thus applied to the states. Total incorporation plus. Idea that the Fourteenth Amendment protects all rights mentioned in the first eight amendments as well as other rights not enumerated in the Constitution. Unenumerated rights. Constitutionally protected rights not explicitly mentioned in the Constitution, such as the right of privacy. These rights are usually defended by the substantive due process doctrine or the Ninth Amendment.

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Uniform Code of Military Justice (UCMJ). Code of laws enacted by Congress to govern people serving in the military. The code excludes many of the rights in the first eight amendments. Vagueness doctrine. Doctrine holding that a law violates due process principles if it is not written precisely enough to make it clear which actions are illegal. Vested rights. Long-established rights, especially property rights, which cannot be taken from a person without due process of law. Viability. Ability of a fetus to survive outside the womb. Victim-impact statement. Testimony of victims and their friends and family members during the punishment phase of a criminal trial, a practice upheld in Payne v. Tennessee (1991). Viewpoint discrimination. Governmental preference for one point of view over another. Rosenberger v. University of Virginia (1995) found such a preference unconstitutional unless “reasonable in light of the purpose served by the forum.” Voir dire. French for “to see, to speak.” The process in which prospective jurors are questioned by attorneys or judges in order to select juries for trials. Waiver. Voluntary and intentional relinquishment of a legal right. Citizens have the right to waive their rights, so long as there is no coercion by the police. Warrant. Court order authorizing the police to make an arrest or conduct a search for criminal evidence. Writ. Written court order. Yellow dog contract. Requirement, illegal since 1932, forbidding employees to join labor unions as a condition of employment. Thomas T. Lewis

762

BIBLIOGRAPHY General Works Abraham, Henry, and Barbara Perry. Freedom and the Court: Civil Rights and Liberties in the United States. New York: Oxford University Press, 1998. Extremely readable and trustworthy account of how the Supreme Court has interpreted the Bill of Rights and the Fourteenth Amendment. Akhil, Amar Reed. The Bill of Rights: Creation and Reconstruction. New Haven, Conn.: Yale University Press, 2000. Written by an outstanding constitutional scholar, this controversial work argues that the Civil War and Reconstruction era transformed the meaning of the Bill of Rights from exclusively protecting against governmental abuses to emphasizing the rights of minorities against the majority. Alderman, Ellen, and Caroline Kennedy. In Our Defense: The Bill of Rights in Action. Avon Books, 1991. Highly readable and compelling work that includes nineteen vignettes of real-life cases in which regular people have relied upon one or more of the liberties and rights guaranteed by the first ten amendments. Bowling, Kenneth, et al. Creation of the Bill of Rights: The Documentary Record from the First Federal Congress. Baltimore: Johns Hopkins University Press, 1991. Useful collection of speeches and other primary source materials. Brant, Irving. The Bill of Rights: Its Origins and Meanings. Indianapolis: Bobbs and Merrill, 1965. Although dated in content, this work provides an excellent historical introduction, written by one of the leading authorities on James Madison and the period in which he lived. Cogan, Neil, ed. The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins. New York: Oxford University Press, 1997. Most complete documentary record available on the background and framing of the first ten amendments, with a chapter devoted to each clause of the amendments. Conley, Patrick, and John Kaminski, eds. The Bill of Rights and the States: The Colonial and Revolutionary Origins of American Liberties. Madison: Madison House, 1992. Following three introductory chapters summarizing the history of American rights from the colonial period until Congress’s adoption of the Bill of Rights, a noted historian writes a chapter tracing the foundation and development of individual liberty

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in each of the first fourteen states. The last chapter provides an exhaustive bibliography. Cortner, Richard C. The Supreme Court and the Second Bill of Rights: The Fourteenth Amendment and the Nationalization of the Bill of Rights. Madison: University of Wisconsin Press, 1981. Brilliant and highly useful account of the development of the incorporation doctrine and its application to the first eight amendments. Curtis, Michael Kent. No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights. Durham, N.C.: Duke University Press, 1990. Curtis makes a strong case for the controversial thesis that the Republicans who produced the Fourteenth Amendment intended to make the first eight amendments (at least most of their provisions) applicable to the states. A lawyer rather than a detached historian, Curtis tends to minimize contrary evidence and to glorify John Bingham and the other Republicans. Dudley, William, ed. The Bill of Rights: Opposing Viewpoints. San Diego: Greenhaven Press, 1994. Useful book demonstrating that reasonable and informed people can disagree about the interpretations of the Bill of Rights. Epstein, Lee, and Thomas G. Walker. Constitutional Law for a Changing America: Rights, Liberties, and Justice. 4th ed. Washington, D.C.: C.Q. Press, 2001. Designed for college students, the work combines an interesting and scholarly narrative with selections from Supreme Court cases. Glasser, Ira. Visions of Liberty: The Bill of Rights for All Americans. New York: Arcade, 1991. Excellent introduction to the Bill of Rights and its modern significance by a longtime director of the ACLU, but is sometimes unfair to conservative viewpoints. The excellent photographs of Bob Adelman contribute to the compelling nature of the book. Hall, Kermit, ed. By and For the People: Constitutional Rights in American History. Arlington Heights: Harlan Davidson, Inc., 1991. Commemorating the bicentennial of the Bill of Rights, this volume brings together eleven concisely written articles about significant aspects of the amendments, each written by an authority in the field. Hickok, Eugene. The Bill of Rights: Original Meaning and Current Understanding. Charlottesville: University Press of Virginia, 1991. Emphasizes that the Supreme Court has applied greater interpretive revisionism to the first ten amendments than to other parts of the Constitution.

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Kukla, Jon, ed. The Bill of Rights: A Lively Heritage. Richmond: Virginia State Library and Archives, 1987. Includes well-documented essays about individual amendments, earlier published in the Virginia Cavalcade. Levy, Leonard. Constitutional Opinions: Aspects of the Bill of Rights. New York: Oxford University Press, 1986. Series of perceptive and readable essays by an outstanding legal historian, generally endorsing an expansive reading of the Bill of Rights in order to protect individual liberty. Lutz, Donald. The Origins of American Constitutionalism. Baton Rouge: Louisiana State University Press, 1988. Excellent discussion of the influence of the Magna Carta and the common law tradition in the development of American ideas about individual liberties and limitations on governmental power. _____. Origins of the Bill of Rights. New Haven, Conn.: Yale University Press, 2001. This scholarly work presents a fascinating account of the behindthe-scenes bargaining and public declarations of James Madison and others in winning congressional approval and ratification of the first ten amendments. Monk, Linda. The Bill of Rights: A User’s Guide. 2d ed. Alexandria: Close Up Publications, 1995. Describes the history and development of the first ten amendments and presents stories of many of the people who have participated in the development. Morgan, Robert J. James Madison, the Constitution, and the Bill of Rights. New York: Greenwood Press, 1988. Study of Madison’s political philosophy, emphasizing his fear of unrestricted political power and his commitment to principles of republican government. Morgan also focuses on the impact of the American experience on Madison’s thought. Peck, Robert S. The Bill of Rights and the Politics of Interpretation. St. Paul: West Publications, 1992. Valuable contribution that emphasizes how public opinion and political considerations directly and indirectly influence how the courts interpret constitutional liberties. Rohde, Stephen F. American Words of Freedom. New York: Hungry Minds, 2001. Clear and thoughtful analyses of the Declaration of Independence and U.S. Constitution by a leading American Civil Liberties Union officer who has practiced constitutional law for thirty years. Contains the complete texts of the documents with detailed article-byarticle and amendment-by-amendment discussions. A particularly valuable feature of the book is the text of President George W. Bush’s speech before Congress on September 20, 2001, in the wake of the dev-

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astating terrorist attacks on the World Trade Center and Pentagon, followed by Rohde’s analysis. Rutland, Robert. The Birth of the Bill of Rights, 1776-1791. Chapel Hill: University of North Carolina Press, 1955. Excellent standard account of the historical background to the drafting, congressional approval, and ratification of the first ten amendments, including much materials about the state bills of rights and their influences. Schwartz, Bernard. The Great Rights of Mankind: A History of the American Bill of Rights. New York: Rowman & Littlefield, 1998. Perhaps the best short history ever written about the first ten amendments, including summaries of major judicial interpretations through the Rehnquist Court. Wiltshire, Susan. Greece, Rome, and the Bill of Rights. Norman: University of Oklahoma Press, 1999. While recognizing that ancient writers and philosophers did not directly influence the content of the Bill of Rights, Wiltshire persuasively argues that the classical idea of natural rights, as developed by the Stoics and others, provided a necessary infrastructure for the concept of individual rights. Issues and Amendments Alley, Robert. The Constitution and Religion: Leading Supreme Court Cases on Church and State. New York: Prometheus Books, 1998. Collection of the full texts of the Supreme Court’s most significant religion cases, presented in a comprehensive and nonpartisan fashion. Sufficiently up to date to cover some of the recent debate on original intent. Barnett, Randy, ed. The Rights Retained by the People: The History and Meaning of the Ninth Amendment. Fairfax, Va.: George Mason University Press, 1989. Excellent collection of essays advocating a variety of interpretations about the most elusive of the first ten amendments. Bodenhamer, David. Fair Trial: The Rights of the Accused in American History. New York: Oxford University Press, 1991. Best single account of the origins and developments of the rights of defendants in the U.S. criminal justice system. Succinct, clearly written, and very interesting. Boyer, Paul. Purity in Print: The Vice-Society Movement and Book Censorship in America. New York: Charles Scribner’s Sons, 1968. Scholarly but nonetheless delightfully written account of the excesses of censorship before the courts took a more liberal interpretation of the First Amendment after World War II.

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Bradley, Craig. The Failure of the Criminal Procedure Revolution. Philadelphia: University of Pennsylvania Press, 1993. Compared with other industrial countries, Craig argues that the piecemeal, case-by-case development of criminal procedures has produced a system that is overly complex and cumbersome. He advocates a comprehensive code that is nationally applicable. Davis, Abraham L., and Barbara Luck Graham. The Supreme Court, Race, and Civil Rights: From Marshall to Rehnquist. Thousand Oaks: Sage Publications, 1995. Narrative history that includes analysis of cases emphasizing the human dimensions of the politically disadvantaged in each era. About three-quarters of the book is devoted to the years since Earl Warren became chief justice in 1953. Ely, James, Jr. The Guardian of Every Other Right: The Constitutional History of Property Rights. New York: Oxford, 1992. Interesting scholarly account, with a great deal of information on topics such as the takings clause and the liberty of contract doctrine. Epstein, Richard A. Takings: Private Property and the Power of Eminent Domain. Cambridge, Mass.: Harvard University Press, 1985. Epstein, the nation’s foremost libertarian lawyer, argues that all governmental impositions on property should require compensation under the Fifth Amendment. Glendon, Mary Ann. Rights Talk: The Impoverishment of Political Discourse. New York: Free Press, 1993. Polemical work arguing that a singleminded emphasis on individual legal entitlements has distracted from other values such as care, responsibility, and practical compromises. Grazia, Edward de. Girls Lean Backward Everywhere: The Law of Obscenity and the Assault on Genius. New York: Random House, 1993. Emphasizing the historical conflict between artistic expression and censorship, this well-researched book opposes all forms of moral censorship. Halbrook, Stephen. That Every Man Be Armed: The Evolution of a Constitutional Right. Oakland: Independent Institute, 1984. Most complete work written on the history of the Second Amendment and the right to possess arms. Although Halbrook, a lawyer, makes a strong case that the amendment protects an individual right, he pays limited attention to the limitations of that right, and he also avoids the incorporation issue. Hentoff, Nat. The First Freedom: The Tumultuous History of Free Speech in America. New York: Delacorte, 1980. Interesting popular history written by a prominent civil libertarian; not a profound legal analysis.

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Hixson, Richard. Pornography and the Justices: The Supreme Court and the Intractable Obscenity Problem. Carbondale: Southern Illinois University Press, 1996. Chronological examination of how the Court has dealt with obscene material within the context of decision making in evolving social mores. Howard, John R. The Shifting Wind: The Supreme Court and Civil Rights from Reconstruction to Brown. Albany: State University of New York Press, 1999. Howard traces the meaning of freedom in its evolution from the first post-Civil War cases to Plessy v. Ferguson (1896) through an era he terms “American apartheid.” He concludes with three chapters tracing the origins, adjudication, and impact of Brown v. Board of Education (1954). Kalven, Harry, Jr., A Worthy Tradition: Freedom of Speech in America. New York: Harper and Row, 1988. Scholarly account of cases dealing with free expression from 1919 to 1974. Latzer, Barry. Death Penalty Cases: Leading U.S. Supreme Court Cases on Capital Punishment. Woburn, Mass.: Butterworth-Heinemann, 1997. After an introductory chapter, Latzer presents excerpts from twenty-two cases between 1968 and 1991, omitting most footnotes and citations but preserving the essence of the arguments and reasoning. Levy, Leonard. The Establishment Clause: Religion and the First Amendment. Durham: University of North Carolina Press, 1994. While the lion’s share of this powerful separationist statement is given to the background and writing of the establishment clause, two thought-provoking chapters are devoted to the Supreme Court and parochial schools, judicial tests, public schools, and public nativity scenes. _____. Origins of the Fifth Amendment: The Right Against Self-Incrimination. Chicago: Ivan R. Dee Publications, 1999. Classic, Pulitzer Prizewinning study first published in 1975. The 1999 edition includes a new preface by the author. McKinnon, Catherine. Only Words. Cambridge, Mass.: Harvard University Press, 1996. McKinnon, the intellectual leader of feminine legal theory, argues that the goal of equality justifies proscribing those forms of pornography that degrade or subordinate women. Manfredi, Christopher P. The Supreme Court and Juvenile Justice. Lawrence: University Press of Kansas, 1997. Manfredi provides a readable and insightful historical treatment of the evolution of the juvenile court movement, with the weight of the treatment on discussions of Kent v. United States (1966) and In re Gault (1967).

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Mello, Michael. Against the Death Penalty: The Relentless Dissents of Justices Brennan and Marshall. Boston: Northeastern University Press, 1996. Expanding on the arguments that Justices William J. Brennan, Jr., and Thurgood Marshall utilized in the Furman v. Georgia (1972) and Gregg v. Georgia (1976) cases, Mello provides the historical, legal, and philosophical thinking that informed their dissents in more than 2,500 cases involving the death penalty. Morgan, Richard E. Disabling America: The “Rights Industry” in Our Time. New York: Basic Books, 1984. Conservative attack on the Supreme Court’s expansive interpretations of defendants’ rights since the due process revolution of the Warren Court. Murphy, Paul L. The Meaning of Free Speech: First Amendment Freedoms from Wilson to Roosevelt. Westport, Conn.: Greenwood Press, 1972. Excellent discussion of free-speech controversies during the two decades following World War I. Noonan, John T., Jr., and Edward Gaffney, Jr. Religious Freedom: History, Cases, and Other Materials on the Interaction of Religion and Government. New York: Foundation Press, 2001. Following 156 pages of documents and commentaries relating to the historical background of the American experience, the volume includes about eight hundred pages of materials about religious freedom and governmental relationship to religion from the colonial period until the twenty-first century. Peck, Robert S. Libraries, the First Amendment, and Cyberspace: What you Need to Know. Chicago: American Library Association, 1999. Written for librarians by a lawyer who specializes in First Amendment issues, this is a useful guide about topics like confidentiality laws, the exclusion of “indecent” materials, and inappropriate uses of the Internet. Peltason, Jack, and Sue Davis. Understanding the Constitution. 15th ed. New York, 2000. Sound and highly readable commentary about the clauses of the Constitution, including those in the Bill of Rights. Peters, Shawn. Judging Jehovah’s Witnesses: Religious Persecution and the Dawn of the Rights Revolution. Lawrence: University Press of Kansas, 2000. Vivid analysis of the suppression of the Witnesses during the 1930’s and 1940’s and how their struggle transformed civil liberties. Rehnquist, William. All the Laws But One: Civil Liberties in Wartime. New York: Alfred Knopf, 1999. In this interesting analysis that emphasizes the experiences of the Civil War and World War II, Chief Justice Rehnquist argues that wars necessitate a balancing between constitutional liberties and the demands of national security.

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Rosenberg, Norman. Protecting the Best Men: An Interpretative History of the Law of Libel. Chapel Hill: University of North Carolina Press, 1990. Useful overview of libel law from the colonial period to the 1980’s. Saunders, Kevin. Violence as Obscenity: Limiting the Media’s First Amendment Protection. Durham, N.C.: Duke University Press, 1996. Argues that the definition of obscenity should be expanded to include explicit and offensive violence, which should be regulated because of its harm to society. Shiell, Timothy. Campus Hate Speech on Trial. Lawrence: University Press of Kansas, 1999. Critical examination of speech codes for colleges and universities intended to promote equal education opportunities but usually found to violate the First Amendment. Smith, Jeffrey. War and Press Freedom: The Problem of Prerogative Power. New York: Oxford University Press, 1999. Richly documented work about the restrictions on the press in the name of “national security” from the adoption of the First Amendment until the Gulf War of 1991. A professor of journalism, Smith thinks that unrestricted freedom of the press is less dangerous than governmental suppression. Smith, Rodney K. Public Prayer and the Constitution. Wilmington: Scholarly Resources, 1987. Cogent analysis of the establishment clause, rejecting the idea of a “wall of separation” in favor or Madison’s view that the government should neither promote nor proscribe religious observances. Stephens, Otis H., Jr, and John Scheb II. American Constitutional Law. 2d ed., Belmont: West/Wadsworth, 1999. Excellent topical summary of American constitutional law, designed primarily for undergraduate courses in political science. Stossen, Nadine. Defending Pornography: Free Speech, Sex, and the Fight for Women’s Rights. New York: New York University, 2000. Professor Stossen, who has served as president of the American Civil Liberties Union, argues that pornography’s good effects outweigh the bad, and that any attempt to censor pornography produces more evils than it prevents. Volokh, Eugene. First Amendment: Law, Cases, Problems, and Policy Arguments. New York: Foundation Press, 2001. Exhaustive collection of documents and commentary related to the freedoms and principles of the First Amendment. Wallace, Jonathan, and Manga, Mark. Sex, Laws, and Cyberspace. Collindale: Diane, 1999. Balanced work that examines the complex issues re-

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lating to free expression over the Internet, with suggested compromises for monitoring the Internet while preserving the values of the First Amendment. Wilson, Donald Jackson. Even the Children of Strangers: Equality Under the U.S. Constitution. Lawrence: University of Kansas Press, 1993. Traces the complex meanings that have been attached to the notion of equal protection during its evolving treatment by the Supreme Court and uses the methodology of social sciences to establish an argument that entitlement to equal protection should always be presumed. Case Studies Baker, Liva. Miranda: Crime, Law and Politics. New York: Atheneum, 1983. Detailed account that places the pivotal Miranda v. Arizona case within the context of sociopolitical conceptions about criminal behavior in the modern era. Epps, Garrett. To an Unknown God: Religious Freedom on Trial. New York: St. Martin’s Press, 2001. Written by a law professor, this book presents a detailed account of Employment Division v. Smith (1990), which lowered the bar for protection of religious liberty. Professor Epps tells the unknown story of how Al Smith, a native American who was a recovering alcoholic, was fired after he participated in the peyote ceremony in order to represent his tribal religion. Friendly, Fred W. Minnesota Rag: The Dramatic Story of the Landmark Supreme Court Case That Gave New Meaning to Freedom of the Press. New York: Random House, 1981. The author, a television executive and professor of journalism, has written a colorful account of Near v. Minnesota (1931), a landmark in the evolution of freedom of the press. Friendly, Fred W., and Martha Elliott. The Constitution: That Delicate Balance. New York: Random House, 1984. Written as a companion volume to a television series, the book includes sixteen well-written and interesting chapters in which each is devoted to one or more Supreme Court cases involving a constitutional right. Garrow, David. Liberty and Sexuality: The Right to Privacy and the Making of “Roe v. Wade.” Berkeley: University of California Press, 1998. A model of top-notch journalism, this meticulously researched and carefully presented work is a vast treatment of the political and legal debate over abortion spanning more than fifty years. Irons, Peter. The Courage of Their Convictions: Sixteen Americans Who Fought Their Way to the Supreme Court. New York: Penguin, 1988. This fascinat-

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ing work portrays pivotal cases touching on religion, race, protest, or privacy, from Minersville School District v. Gobitis (1940) to Bowers v. Hardwick (1986). Includes a lengthy statement by a principal in each of the cases. _____. Justice at War: The Story of the Japanese-American Internment Cases. Berkeley: University of California Press, 1993. A lawyer who helped reverse some of the convictions, Irons provides an exhaustive account of the Supreme Court’s deliberations in Hirabayashi v. United States (1943) and Korematsu v. United States (1944), along with a wealth of impressively researched and skillfully presented background. Kens, Paul. Judicial Power and Reform Politics: The Anatomy of “Lochner v. New York.” Lawrence: University of Kansas Press, 1990. Informed and readable account of the famous case that came to symbolize the old Supreme Court’s use of the substantive due process doctrine to overturn labor regulations. Kluger, Richard. Simple Justice: The History of “Brown v. Board of Education” and Black America’s Struggle for Equality. New York: Alfred A. Knopf, 1975. Highly detailed and fascinating account of the landmark decision that overturned segregated public schools and initiated the civil rights movement. The book includes much material about the personalities and legal processes of the decision. . Lewis, Anthony. Gideon’s Trumpet. New York: Vintage, 1989. Originally published in 1964, this classic account of a poor man’s pursuit of his right to legal counsel that reached the Supreme Court’s Gideon v. Wainwright decision is an informed and thorough portrait of the process by which a case makes its way through the court system to the Supreme Court. _____. Make No Law: The “Sullivan” Case and the First Amendment. New York: Random House, 1992. As a reporter, Lewis covered the development of the Sullivan case, a libel suit brought against The New York Times by a public official. The Supreme Court decision in the case limited recourse to libel suits as a political tactic by ruling that press criticism of public officials was protected even when erroneous unless the press was demonstrably malicious. Polenberg, Richard. Fighting Faiths: The “Abrams” Case, the Supreme Court and Free Speech. New York: Viking, 1987. Reprint. Ithaca, N.Y.: Cornell University Press, 1999. Marvelous retelling of the World War I case in which Oliver Wendell Holmes’s powerful dissent was a major event in the application of the clear and present danger test.

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Schwartz, Bernard. Behind “Bakke”: Affirmative Action and the Supreme Court. New York: New York University Press, 1988. Superb recounting of the Bakke case (1978) with the fullest possible reference to the legal background and issues embedded in it. Smolla, Rodney. Jerry Fallwell v. Larry Flint: The First Amendment on Trial. New York: St. Martin’s Press, Inc., 1988. Scholarly but highly readable analysis of an important freedom of speech case, written by a law professor who is a recognized authority on the First Amendment. Swanson, Wayne. The Christ Child Goes to Court. Philadelphia: Temple University Press, 1989. Interesting case study of the crèche case, Lynch v. Donnelly (1984), providing detailed information about the judicial process, as well as the local politics of Rhode Island. U.S. Supreme Court Biskupic, Joan, and Elder Witt. Congressional Quarterly’s Guide to the United States Supreme Court. 3d ed. 3 vols. Washington, D.C.: Congressional Quarterly, 1997. Presents a short history of the Court, a guide to the Court’s operations and traditions, and biographies of justices, with appended documents, texts, glossaries, tables, chronologies, and a map of the federal court system. Cooper, Phillip J. Battles on the Bench: Conflict Inside the Supreme Court. Lawrence: University Press of Kansas, 1999. Covers all eras of Supreme Court history. Not only presents fascinating tales of clashes large and small between justices but also analyzes why and how justices fight, why they often avoid fights, and how this behavior shapes the development of decisions. Currie, David. The Constitution of the United States: A Primer for the People. 2d ed. Chicago: University of Chicago Press, 2000. Clearly written introduction for the general reader. Professor Currie is highly critical of judicial activism and especially dislikes the doctrine of substantive due process. Epstein, Lee, et al., eds. The Supreme Court Compendium: Data, Decision, and Developments. Washington, D.C.: Congressional Quarterly, 1994. Covers institutional perspectives on the Court, the review process, caseloads, and trends in opinions and decisions. Presents information on nomination, confirmation, and activities and voting behavior of justices. Also discusses the Supreme Court and the political environment, the Court’s impact, and its place in the justice system.

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Friedman, Leon, and Fred L. Israel, eds. The Justices of the United States Supreme Court: Their Lives and Major Opinions. 5 vols. New York: Chelsea House, 1997. Originally published in four volumes between 1969 and 1978, this edition has been updated and expanded. Hall, Kermit L., ed. The Oxford Companion to the Supreme Court of the United States. New York: Oxford University Press, 1992. This single-volume reference on the Court and its business presents more than a thousand articles by scholars and specialists embracing biographies, studies of individual decisions, and major issues confronting the Court. Hensley, Thomas, Christopher Smith, and Joyce Baugh. The Changing Supreme Court: Constitutional Rights and Liberties. Minneapolis: West, 1997. Scholarly and interesting text arranged topically, with both qualitative analysis and quantitative scales of liberal/conservative voting patterns of the justices. Irons, Peter H. A People’s History of the Supreme Court. New York: Viking Penguin, 1999. Inspired by Howard Zinn’s popular People’s History of the United States (1979), this colorfully written history is filled with insightful portraits of justices, lawyers, and litigants alike and is concerned with the role of the Court in preserving principles of liberty and equality. Levy, Leonard, and Kenneth Karst, eds. Encyclopedia of the American Constitution. 2d ed. 6 vols. New York: Macmillan Reference, 2000. These large volumes provide detailed accounts of doctrines, terms, and cases relating to the American Constitution and constitutional law, written by recognized scholars. Lewis, Thomas T., and Richard L. Wilson, eds. Encyclopedia of the U.S. Supreme Court. 3 vols. Pasadena, Calif.: Salem Press, 2001. Comprehensive coverage of the Supreme Court, with articles on all its justices, major cases, and the issues that it has addressed. Lieberman, Jethro K. A Practical Companion to the Constitution: How the Supreme Court Has Ruled on Issues from Abortion to Zoning. Berkeley: University of California Press, 1999. The book’s core is 535 pages devoted to an alphabetical guide to issues, although the book also provides a concordance to the Constitution and other useful materials. McCloskey, Robert G. The American Supreme Court. 2d ed. Chicago: University of Chicago Press, 1994. Presents a complete overview of the structure, functions, history, and direction of the Supreme Court and an appreciation of its role in the U.S. political and governmental system.

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Maroon, Fred J., and Suzy Maroon. The Supreme Court of the United States. West Palm Beach, Fla.: Lickle Publishing, 1996. Contains 130 color photographs of the Supreme Court building exterior and interior, a photo essay on the progress of an appeal through the Court, and a brief history of the Court. Martin, Fenton S., and Robert U. Goehlert. How to Research the Supreme Court. Washington, D.C.: Congressional Quarterly, 1992. This guide to the major secondary sources, as well as to primary sources and finding tools, is accompanied by somewhat cursory remarks on research methodology. A selected bibliography on Supreme Court justices is also included. _____. The United States Supreme Court: A Bibliography. Washington, D.C.: Congressional Quarterly, 1990. Provides information on more than nine thousand books and articles organized according to the Court’s development, organization, and work; issues it has addressed; and its relationship to other governmental entities. Subject and author indexes are provided. Schwartz, Bernard. A History of the Supreme Court. New York: Oxford University Press, 1993. Excellent one-volume history of the Supreme Court with interesting descriptions of major justices and detailed descriptions of landmark decisions. _____. How the Supreme Court Decides Cases. New York: Oxford University Press, 1996. Schwartz identifies four basic scenarios for the modern Court’s decision making: leadership by a strong chief justice, leadership on given issues by forceful individual justices, general cooperation of justices dealing with a weak chief justice, and decision by vote switching. Semonche, John. Keeping the Faith: A Cultural History of the U.S. Supreme Court. Lanham, Md.: Rowman & Littlefield, 1998. Portraying the Supreme Court as a guardian of the progressive values of liberty and equality, Semonche refers to the justices as “the high priests of the American civil religion.” The Supreme Court A to Z: A Ready Reference Encyclopedia. Rev. ed. Washington, D.C.: Congressional Quarterly, 1994. Offers more than three hundred brief unsigned articles dealing with Supreme Court personnel, laws, issues, and terminology. Useful for quick reference but neither deep nor extensive in the information presented. The Supreme Court of the United States: Its Beginnings and Its Justices, 17901991. Washington, D.C.: Commission on the Bicentennial of the

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United States Constitution, 1992. Presents single-page biographies and full-page pictures of all the justices who sat on the Court through 1991, as well as pictures of all the quarters occupied by the Court over two centuries. Urofsky, Melvin I., ed. The Supreme Court Justices: A Biographical Dictionary. New York: Garland Publishing, 1994. Provides signed, scholarly biographies of the justices in alphabetical order with bibliographies for further reading. Urofsky, Melvin I., and Paul Finkelman. A March of Liberty: A Constitutional History of the United States. 2d edition. 2 vols. New York: Oxford University Press, 2002. Written primarily to serve as a textbook for college courses, this is a readable and scholarly account of the Constitution and its interpretation by the Supreme Court. Wiecek, William M. Liberty Under Law: The Supreme Court in American Life. Baltimore: Johns Hopkins University Press, 1988. Clear and succinct summary of the history of the Court aimed at those who have no background in law. Its judgments about people and events are carefully considered, with some bias in favor of an activist Court. Supreme Court Justices Eisler, Kim Isaac. A Justice for All: William J. Brennan Jr., and the Decisions That Transformed America. New York: Simon & Schuster, 1993. This entertaining account of Justice William J. Brennan, Jr.’s background and the bickering among Supreme Court justices describes his judicial activism and liberalism but is not successful in explaining how he came to be the most dedicated and articulate liberal voice on the Court in his era. Gunther, Gerhard. Learned Hand: The Man and the Judge. New York: Alfred A. Knopf, 1994. A former clerk to both Learned Hand and Earl Warren, Gunther explains why Hand—though he never sat on the Supreme Court—had a major impact on the Court’s workings through his powerful opinions over fifty-two years as a federal judge. Hirsch, H. N. The Enigma of Felix Frankfurter. New York: Basic Books, 1981. To explain why Felix Frankfurter the civil libertarian became Frankfurter the advocate of judicial restraint, Hirsch uses psychohistorical techniques. Frankfurter comes across as a neurotic overcompensating for physical and social shortcomings, but his legal evolution is not thereby explained.

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Hutchinson, Dennis. The Man Who Once Was Whizzer White: A Portrait of Justice Bryron R. White. New York: Free Press, 1998. Scholarly study of a competent justice who valued his privacy and attempted to make good decisions in particular cases rather than formulate constitutional doctrines or worry about consistency. Jeffries, John C., Jr. Justice Lewis F. Powell, Jr. New York: Charles Scribner’s Sons, 1994. Justice Powell’s former clerk has written a penetrating analysis of how this moderately conservative justice was often the swing vote in important cases dealing with school desegregation, abortion, capital punishment, and racial preference in school admissions. The work emphasizes how Powell’s views developed and how he managed to keep his political and constitutional positions compartmentalized. Marion, David E. The Jurisprudence of Justice William J. Brennan, Jr.: The Law and Politics of Libertarian Dignity. Lanham, Md.: Rowman & Littlefield, 1997. Marion contends that Brennan was the most important liberal justice of the twentieth century, emphasizing his great influence on political discourse and public policy. Maveety, Nancy. Justice Sandra Day O’Connor: Strategist on the Supreme Court. Lanham, Md.: Rowman & Littlefield, 1996. Maveety provides a brief biographic introduction before embarking on a scrupulous analysis of how Sandra Day O’Connor reaches her decisions and the tactics by which she makes herself as influential as possible on the Court. Murphy, Bruce Allen. Fortas: The Rise and Ruin of a Supreme Court Justice. New York: William Morrow, 1988. Fascinating biography of a man tricked into taking a seat on the Supreme Court, bringing ruin on himself by violating the separation of powers in principle and practice and through his unethical financial dealings, thereby making possible the Court’s later trend to the Right. Newman, Roger K. Hugo Black: A Biography. New York: Pantheon Books, 1994. About half of this thorough biography is devoted to Hugo L. Black’s service on the Court, when, despite deficiencies in his formal education, he became one of the most effective defenders of individual rights in the Court’s history. Newman includes much detailed information about Black’s life, including his involvement with the Ku Klux Klan. Newmyer, R. Kent. Justice Joseph Story: Statesman of the Old Republic. Chapel Hill: University of North Carolina Press, 1985. Describes the remarkable evolution of Joseph Story, who was a professor of law at Harvard while he was a justice, as a person and a legal thinker.

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Bibliography / 777

Parrish, Michael E. Felix Frankfurter and His Times: The Reform Years. New York: Free Press, 1982. This excellent biography ends with Felix Frankfurter about to begin his tenure on the Supreme Court, but the light it sheds on his early career is valuable in understanding his evolution as a Supreme Court justice. Posner, Richard A. Cardozo: A Study in Reputation. Chicago: University of Chicago Press, 1990. Justice Cardozo’s opinions, Posner asserts, betray a tendency to play fast and loose with facts because of the goal of establishing pragmatic rules suitable for general application. A scholarly work that exaggerates Cardozo’s defects and minimizes the strengths of his legal opinions. Simon, James F. Independent Journey: The Life of William O. Douglas. New York: Harper & Row, 1980. Published three years after Douglas’s death, this book explains why Douglas was so controversial that his impeachment was attempted and how so statesmanlike a person could be so callous and cruel in his private life. Smith, Jean Edward. John Marshall: Definer of a Nation. New York: Henry Holt, 1996. Authoritative biography of the “great Chief Justice” who is considered the most influential legal statesman to have sat on the Supreme Court. Stebenne, David L. Arthur J. Goldberg, New Deal Liberal. New York: Oxford University Press, 1996. In addition to a scholarly analysis of Goldberg’s brief but significant tenure on the Supreme Court, this book provides a useful background account of postwar liberalism and Goldberg’s work as general counsel to the United Steelworkers of America. Strum, Philippa. Louis D. Brandeis: Justice for the People. Cambridge, Mass.: Harvard University Press, 1984. Attempts to reconcile some of the polarities of Louis D. Brandeis’s thought by portraying him as a person with Jeffersonian sensibilities coping with the complexities of an age of rapid and extreme urban and industrial growth. Tushnet, Mark. Making Constitutional Law: Thurgood Marshall and the Supreme Court, 1961-1991. New York: Oxford University Press, 1997. This second volume of a biography by Thurgood Marshall’s former clerk contends that Marshall had more influence on civil rights law before becoming a Supreme Court justice and emphasizes his efforts to liberalize the Court’s understanding of equal protection theory. White, G. Edward. Earl Warren: A Public Life. New York: Oxford University Press, 1982. Earl Warren’s former law clerk explains the paradox of Warren’s prosecutorial background and liberalism on the Court by

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pointing out a strong tendency to frame questions as ethical rather than legal issues and to be able to believe simultaneously in a benevolent state and the need to protect the individual against that state. _____. Justice Oliver Wendell Holmes: Law and the Inner Self. New York: Oxford University Press, 1993. Exceptionally strong biography that not only advances the thesis that Oliver Wendell Holmes’s life and work are indivisible but also provides clear and cogent analyses of his legal reasoning and opinions. Yarbrough, Tinsley. John Marshall Harlan: Great Dissenter of the Warren Court. New York: Oxford University Press, 1991. Impressively researched and gracefully written portrait of a moderately conservative justice whose lengthy, careful, and learned opinions were admired by judicial lawyers who disagreed with his conclusions. _____. Judicial Enigma: The First Justice Harlan. New York: Oxford University Press, 1995. Exploration of the discontinuity between John Marshall Harlan’s dissents in major cases affecting civil rights and due process, which have given him the reputation of a prophetic moral force on the Court, and the circumstances of his upbringing and his private life. Historical Periods Casto, William A. The Supreme Court in the Early Republic: The Chief Justiceships of John Jay and Oliver Ellsworth. Columbia: University of South Carolina Press, 1995. Insightful study of a neglected period of Supreme Court history, the pre-Marshall years, when the Court combined English law and colonial practice with the emergence of new legal doctrines and forms appropriate to the U.S. Constitution. Ely, James M., Jr. The Chief Justiceship of Melville W. Fuller, 1888-1910. Columbia: University of South Carolina Press, 1995. An eminent law professor, Ely defends the thesis that Fuller and his fellow justices were not simply defenders of wealth and business interests, but that they were motivated by a desire to preserve individual liberty, albeit conceived primarily in economic terms. Freund, Paul A., ed. History of the Supreme Court of the United States. 9 vols. New York: Macmillan, 1971-1988. Projected to contain eleven volumes, each written by a specialist of a given era, this monumental and publicly funded project is intended to be definitive. Individual volumes are exhaustive in their thoroughness and present strong interpretations and characterizations of various eras of the Court.

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Bibliography / 779

Galloway, Russell W. Justice for All? The Rich and Poor in Supreme Court History, 1790-1990. 2d ed. Charleston, N.C.: Carolina Academic Press, 1991. Galloway argues that the Court is pendulum-like in its preferences for rich and poor over time, swinging from a conservative era from 1790 to 1835, to a generally liberal era from 1836 to 1890, to a second conservative era from 1890 to 1937, to a second liberal era from 1937 to 1969, to a third conservative era, beginning in 1969. Graham, Fred. The Due Process Revolution: The Warren Court’s Impact on Criminal Law. New York: Hayden, 1970. Sound summary of the Warren Court’s expansion of the rights for criminal defendants, written by a television news reporter. Horwitz, Morton J. The Warren Court and the Pursuit of Justice. New York: Hill and Wang, 1998. This short treatment is a defense of the work of the Court under Chief Justice Earl Warren. It portrays the Warren Court in a static fashion with no account of internal tensions and debates nor any consideration of the evolving of opinions or of Court dynamics. Irons, Peter. Brennan vs. Rehnquist: The Battle for the Constitution. New York: Alfred Knopf, 1994. Fascinating comparative analysis of two ideological voices that dominated the Court for many years. Professor Irons consistently agrees with Brennan’s views, and he finds it difficult to be fair when discussing those of Rehnquist. Lazarus, Edward. Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court. New York: Penguin Group, 1999. Justice Harry A. Blackmun’s former law clerk concentrates on capital punishment, race relations, and abortion to describe a sometimes dysfunctional court engaging in jealous and partisan bickering and rubber stamping opinions written exclusively by clerks. Some of his contentions have been criticized as factually inaccurate. Leuchtenberg, William E. The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt. New York: Oxford University Press, 1995. A historian of New Deal America, Leuchtenberg presents a comprehensive view of one of the most interesting periods in Court history, in which the Court made a dramatic turn from opposition to government power to wholehearted support of it. Levy, Leonard W. Legacy of Suppression: Freedom of Speech and Press in Early American History. Cambridge, Mass.: Harvard University Press, 1960. Critical account of ideas about freedom of expression in the young Republic, arguing that the Sedition Acts were probably consistent with

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the original understanding of the First Amendment. Levy finds that both Federalists and Republicans deserve low marks on issues of civil liberties. Murphy, Bruce Alan. The Brandeis/Frankfurter Connection. New York: Oxford University Press, 1982. Describes how Justice Louis D. Brandeis kept Professor Felix Frankfurter of the Harvard Law School (later a Supreme Court justice) on retainer and used him to advance causes he, as a sitting Supreme Court justice, could not. The book also reviews other instances of political interventions by sitting justices dating to the early Republic. Murphy, Paul L. The Constitution in Crisis Times, 1918-1969. New York: Harper & Row, 1972. Exposition of the trajectory of the Court in dealing with issues of civil liberties, beginning with the World War I prosecutions on the basis of wartime espionage and sedition acts. Schwartz, Herman, ed. The Burger Court: Counter-Revolution or Confirmation? New York: Oxford University Press, 1998. Impressive collection of writings about the Supreme Court and its controversial rulings during the often tumultuous period from 1969 to 1987, with writings by distinguished legal scholars and practitioners. _____. The Unpublished Opinions of the Warren Court. New York: Oxford University Press, 1985. From memos and drafts of opinions and other archival materials, Schwartz demonstrates the complexity of the Supreme Court’s decision making by reconstructing ten instances in which the members of the Court changed their reasoning or their votes during the process of internal discussion and conference. Silver, David M. Lincoln’s Supreme Court. Carbondale: University of Illinois Press, 1998. Originally published in 1957, this study of Abraham Lincoln’s manipulation of the Supreme Court during the Civil War in order to give himself more leeway in dealing with issues generated by the conflict has never been equaled. Simon, James F. The Center Holds: The Power Struggle Inside the Rehnquist Court. New York: Simon & Schuster, 1995. Simon’s account of the debates and maneuvering inside the Court is extremely thorough and well informed and sheds a great deal of light on the way justices interact without providing a convincing explanation of why the Court was not more conservative during the late twentieth century despite expectations of a dramatic rightward shift. Sunstein, Cass R. One Case at a Time: Judicial Minimalism on the Supreme Court. Cambridge, Mass.: Harvard University Press, 1999. Treatise by a

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Bibliography / 781

leading legal scholar arguing that a hidden minimalist majority on the Court is moving beyond the polarization of judicial activists and conservatives by avoiding broad rulings that forestall debate on public issues. Urofsky, Melvin I. Division and Discord: The Supreme Court Under Stone and Vinson, 1941-1953. Columbia: University of South Carolina Press, 1997. Nonspecialists will find this a very readable and entertaining account of strong and combative justices in the Court wrestling with the issues presented by World War II and the Cold War. Woodward, Bob, and Scott Armstrong. The Brethren: Inside the Supreme Court. New York: Simon & Schuster, 1979. Gossipy account of the inner dynamics of the Court in the shift from the leadership of Chief Justice Earl Warren to that of Warren E. Burger. An entertaining and informative book. Yarbrough, Tinsley. The Burger Court: Justices, Rulings, and Legacy. Santa Barbara: ABC-Clio, 2000. Part of the publisher’s Supreme Court Handbooks Series, with the first section comprising four overview essays and the second section made up of alphabetically arranged topics. _____. The Rehnquist Court and the Constitution. New York: Oxford University Press, 2000. Excellent analysis of the conservative direction the Supreme Court has taken with William Rehnquist as chief justice. Analysis is balanced and fair. Constitutional Interpretation Agresto, John. The Supreme Court and Constitutional Democracy. Ithaca, N.Y.: Cornell University Press, 1994. About a third of this book is a historical analysis of the work of the Court. The remainder is an valuable discussion of the role the Court plays in Americans’ political life, stressing its close involvement with the other two branches. Barber, Sotirios A. The Constitution of Judicial Power: Defending the Activist Tradition. Baltimore: Johns Hopkins University Press, 1997. Against current theories that he accuses of moral relativism, Barber argues that judicial activism is traceable to The Federalist Papers (1788) but must be properly rooted in a philosophy of moral realism to be sound and effective. Berger, Raoul. Government by Judiciary: The Transformation of the Fourteenth Amendment. Cambridge, Mass.: Harvard University Press, 1977. Professor Berger, a conservative defender of states’ rights, rejects the idea that the framers of the Fourteenth Amendment meant to apply the

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first eight amendments to the states, and he criticizes the modern Supreme Court for failing to give proper weight to the framers’ original intent. Bickel, Alexander M. The Least Dangerous Branch: The Supreme Court at the Bar of Politics. New Haven, Conn.: Yale University Press, 1990. Bickel, an eminent law professor who advocated judicial restraint, writes that Marbury v. Madison (1803) provided a somewhat shaky foundation for the practice of judicial review and argues that decisions opposed by the majority of the people will not endure in the long term. Bobbitt, Philip. Constitutional Fate: Theory of the Constitution. New York: Oxford University Press, 1984. Systematic analysis of the nature of interpretation, considering six types of constitutional arguments: historical, textual, structural, prudential, doctrinal, and ethical. Bork, Robert. The Tempting of America: The Political Seduction of the Law. New York: Macmillan, 1990. Scholarly but accessible critique of legal activism and a powerful and eloquent polemic cogently arguing the necessity of recourse to the original intent of the authors of the Constitution. The tone of the work is sometimes angry. Cox, Archibald. The Court and the Constitution. Boston: Houghton Mifflin, 1987. This historically organized treatment reviews the issues and debates of various eras to demonstrate the process by which the Court continually keeps the Constitution a vital and creative instrument of government. Dworkin, Ronald. Freedom’s Law: The Moral Reading of the Constitution. Cambridge, Mass.: Harvard University Press, 1996. Collection of essays advocate the use of abstract moral principles at the most general possible level in interpreting the text of the U.S. Constitution. The volume provides the reader with a good introduction into the liberal and sometimes radical views of Dworkin, who is recognized as a distinguished philosopher of law. Ely, John Hart. Democracy and Distrust: A Theory of Judicial Review. New York: Oxford University Press, 1990. Important work of jurisprudence that advocates special judicial protections for democratic processes, including free expression, but otherwise favors judicial restraint toward legislative choices. Ely rejects the substantive due process doctrine and denies that the Constitution protects a right to abortion. Kahn, Ronald. The Supreme Court and Constitutional Theory, 1953-1993. Lawrence: University Press of Kansas, 1994. In an effort to revise and clarify the perceptions of the Court under Warren E. Burger, Kahn be-

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gins by refining and clarifying the essence of the Warren Court and then embarking on an illuminating comparison. Leyh, Gregory, ed. Legal Hermeneutics: History, Theory and Practice. Berkeley: University of California Press, 1992. Fourteen interesting essays with a diversity of viewpoints regarding the historical and philosophical assumptions about the nature of language and the art of interpretation. Nelson, William E. The Fourteenth Amendment from Political Principle to Judicial Doctrine. Cambridge, Mass.: Harvard University Press, 1995. Nelson argues that the framers of the Fourteenth Amendment wanted to affirm the public’s long-standing rhetoric of equality, which gives support to the expansive interpretations of the equal protection clause during the twentieth century. Posner, Richard A. Problematics of Moral and Legal Theory. Cambridge, Mass.: Harvard University Press, 1999. Posner, a brilliant judge known for his use of economic theory, argues that moral philosophy is too subjective to be useful in constitutional interpretation, and he endorses pragmatic and empirical conclusions based on concrete facts. Scalia, Antonin. A Matter of Interpretation: Federal Courts and the Law. Princeton, N.J.: Princeton University Press, 1997. Controversial essay that advocates a textual analysis of the words of the constitutional text. Justice Scalia, a man committed to conservative values, eschews interpretations based on legislative intent, and he argues that his textualism applies to both constitutional and statutory interpretations. The volume includes critiques by Lawrence Tribe and others. Tribe, Lawrence, and Michael Dorf. On Reading the Constitution. Cambridge, Mass.: Harvard University Press, 1991. Short book that defends a broad and liberal interpretation of the Constitution, combining the common-law tradition, textual analysis, and concern for American values. The discussion of the Ninth Amendment and Bowers and Hardwick (1986) are especially interesting. Wellington, Harry H. Interpreting the Constitution: The Supreme Court and the Process of Adjudication. New Haven, Conn.: Yale University Press, 1991. Covering a range of cases from 1803 to 1973, Wellington treats the Constitution as a living document and rejects the utility and even the possibility of interpreting it solely in terms of the “original intent” of its framers. Whittington, Kenneth. Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review. Lawrence: University of Kansas Press,

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2001. Cogent defense of moderate “originalism,” insisting that the Constitution has knowable meanings, at least in regard to basic principles, that were given to it by those who framed and adopted it. Whittington criticizes the subjectivism of contemporary postmodernism, and deconstructionism. Wolfe, Christopher. Judicial Activism. Pacific Grove, Calif.: Brooks/Cole, 1991. Conservative critique of the judicial activism of liberal judges. Wolf tends to overlook the activism of conservative justices before the Warren Court. Joseph M. McCarthy and Thomas T. Lewis

785

INDEX Abington School District v. Schempp, 301, 313, 403-404 Ableman v. Booth, 49, 67 Abortion, 60, 278; Harris v. McRae, 499-500; Nuremberg Files, 255256; Roe v. Wade, 28, 182, 278, 601-603; Rust v. Sullivan, 610611; Wolf v. Colorado, 655 Abortion clinics, 126, 354, 363; advertising, 422; violence against, 126, 255-256 Abrams v. United States, 78, 129, 159, 189, 323, 430, 612 Abstention doctrine; Younger v. Harris, 659-660 Academic freedom, 119-122, 470; book banning, 121 ACLA. See American Coalition of Life Advocates ACLU. See American Civil Liberties Union Actual malice, 238, 365, 634 Adair v. United States, 168, 404-405 Adamson v. California, 64, 253, 405406, 496 Adarand Constructors v. Peña, 69, 406, 486, 593, 597 Adderley v. Florida, 352, 407, 457 Adkins v. Children’s Hospital, 169, 407-409 Adler v. Board of Education, 119, 245 Advertising, 162 Affirmative action; Adarand Constructors v. Peña, 406; Fullilove v. Klutznick, 486;

Johnson v. Santa Clara County, 510-511; Regents of the University of California v. Bakke, 592; Richmond v. J. A. Croson Co., 596597 African Americans; citizenship, 225, 613; contracts, 167; death penalty, 142, 144, 529, 533, 587; gerrymandering, 492; juries, 236, 419, 575; Little Rock, Arkansas, 454 Afroyim v. Rusk, 635 Agins v. City of Tiburon, 358 Agnello v. United States, 190 Agostini v. Felton, 409, 524 Agricultural Adjustment Act of 1933, 436 Agricultural Adjustment Act of 1938, 556 Aguilar v. Felton, 409 Alberts, David, 607 Alberts v. California, 257, 607 Albertson v. Subversive Activities Control Board, 410, 452 Alien and Sedition Acts, 146, 327 Alien Immigration Act of 1930, 77 Alien land laws, 229 Alien rights and naturalization; Graham v. Richardson, 493-494; Plyler v. Doe, 586-587. See also Immigrant rights Allegheny County v. American Civil Liberties Union Greater Pittsburgh Chapter, 302, 410-411, 532 Allgeyer v. Louisiana, 168, 180, 287, 502, 526, 555, 557

786 / Index

Almota Farmers Elevator and Wholesale Co. v. United States, 97 Ambach v. Norwick, 120 American Civil Liberties Union, 337-338, 469, 524, 539, 602 American Coalition of Life Advocates, 255-256 American Communications Association v. Douds, 196, 198, 243, 411-412 American Indians. See Native Americans American Revolution, 40, 324; conscription, 164; justification of, 252; and search and seizure, 314 Anderson v. Liberty Lobby, 241 Andros, Sir Edmund, 46 Anti-Semitism, 147 Apodaca v. Oregon, 101, 510 Aptheker v. Secretary of State, 452, 516 Argersinger v. Hamlin, 65, 100, 172, 223, 412-413 Arizona, 245 Arizona v. Evans, 193, 525 Arizona v. Fulminante, 95 Arlington Heights v. Metropolitan Housing Development Corp., 371 Articles of Confederation, 31, 43, 343 Ashe v. Swenson, 175 Ashwander v. Tennessee Valley Authority, 108 Assembly, freedom of; American Communications Association v. Douds, 411; Thornhill v. Alabama, 633

The Bill of Rights

Assembly and association, freedom of, 5, 81, 122-126, 196, 276; Adderley v. Florida, 407; Albertson v. Subversive Activities Control Board, 410; Barenblatt v. United States, 414; Boy Scouts of America v. Dale, 427; Brandenburg v. Ohio, 429-430; Communist Party v. Subversive Activities Control Board, 452; Cox v. Louisiana, 456-457; Cox v. New Hampshire, 457; DeJonge v. Oregon, 463-464; Dennis v. United States, 464-465; Edwards v. South Carolina, 471-472; Elrod v. Burns, 474-475; National Association for the Advancement of Colored People v. Alabama, 560-561; National Association for the Advancement of Colored People v. Button, 561-562; New York State Club Association v. City of New York, 567-568; Noto v. United States, 575-576; Robel, United States v., 597-598; Roberts v. United States Jaycees, 598-599; Terminiello v. Chicago, 630; Whitney v. California, 649-650; Yates v. United States, 657-658 Associated Press v. Walker, 239 Association, freedom of. See Assembly and association, freedom of Automobile searches, 89, 126-128; California v. Acevedo, 437-438; Carroll v. United States, 440-441; New York v. Belton, 572; Ross, United States v., 604-605; Whren v. United States, 650-651. See also Search and seizure

The Bill of Rights

Bad tendency test, 78, 128-130, 201 Baggett v. Bullitt, 474 Bail, 9, 105, 130-132, 268-270; and English Bill of Rights, 46 Bail Reform Act, 132 Bailey v. Drexel Furniture Co., 437, 499 Baker v. Carr, 20, 28, 492 Bakke case. See Regents of the University of California v. Bakke Baldwin v. Fish and Game Commission, 281 Baldwin, Henry, 693 Ball, United States v., 95, 176 Ballard v. United States, 413 Ballew v. Georgia, 237 Baltimore and Carolina Line v. Redman, 104 Barbour, Philip P., 693 Barenblatt v. United States, 199, 414 Barker v. Wingo, 101, 342, 415, 517 Barnes v. Glen Theatre, 260, 415-416 Barron v. Baltimore, 51, 61, 175, 416-417 Bates v. State Bar of Arizona, 418, 422 Batson v. Kentucky, 419-420, 469 Beauharnais v. Illinois, 238, 323 Beckwith v. United States, 247 Bell v. Wolfish, 268 Benton v. Maryland, 65, 175, 420, 581 Berg, Alan, 214 Berkemer v. McCarty, 247 Berman v. Parker, 296, 370 Bethel School District No. 403 v. Fraser, 262

Index / 787

Betts v. Brady, 63, 171, 222, 421422, 489 Bigelow v. Virginia, 422-423 Bill of Rights, English. See English Bill of Rights Bill of Rights, U.S., 3-12; and Constitution, 38; and English Bill of Rights, 46; and federalism, 50, 53-54; and incorporation doctrine, 61-66; and inverse incorporation, 6769; and state constitutions, 7072; and Virginia Declaration of Rights, 73-74 . See also individual amendments Bingham, John, 58, 281 Birth control and contraception, 133-135, 277; Griswold v. Connecticut, 496. See also Reproductive rights Bituminous Coal Conservation Act, 441 Bivens v. Six Unknown Named Agents, 316 Black, Hugo L., 194, 243, 598, 693; Adamson v. California, 405; Adderley v. Florida, 407; Betts v. Brady, 422; Engel v. Vitale, 476; Everson v. Board of Education of Ewing Township, 479; and First Amendment absolutism, 335; Illinois ex rel. McCollum v. Board of Education, 506; Korematsu v. United States, 68, 518; Pointer v. Texas, 587; Younger v. Harris, 659 Blackmun, Harry A., 94, 110, 121, 140, 148, 182-183, 278, 289, 292, 418, 448, 466, 503, 532,

788 / Index

548, 564, 572, 580, 582, 602, 623, 693; Allegheny County v. American Civil Liberties Union Greater Pittsburgh Chapter, 411; Bates v. State Bar of Arizona, 418; Bigelow v. Virginia, 422; California v. Acevedo, 438; Pacific Mutual Life Insurance Co. v. Haslip, 580; Roe v. Wade, 603 Blackstone, William, 146, 270-271 Blair, John, Jr., 693 Blasphemy, 136 Blatchford, Samuel, 456, 694; Counselman v. Hitchcock, 455 BMW of North America v. Gore, 423 Board of Education v. Mergens, 661 Board of Regents v. Roth, 291 Boerne v. Flores, 310, 423-424 Bolling v. Sharpe, 67-68, 424-425, 433 Bond v. United States, 521 Boos v. Barry, 353 Booth v. Maryland, 582 Bourjailly v. United States, 367 Bowditch v. Boston, 356 Bowers v. Hardwick, 135, 183, 209, 279, 426, 624 Boy Scouts of America v. Dale, 427 Boyd v. United States, 275, 428-429 Bradley, Joseph P., 53-54, 275, 428, 451, 694; Boyd v. United States, 428 Bradwell v. Illinois, 282 Brady Handgun Violence Prevention Act, 347 Brandeis, Louis D., 274-275, 323, 357, 442, 491, 554, 577, 694; Abrams v. United States, 78; and bad tendency test, 78; and clear

The Bill of Rights

and present danger test, 200, 576; on common law, 16; and First Amendment, 119; and free speech, 159, 341; O’Gorman and Young v. Hartford Fire Insurance Co., 576-577; Olmstead v. United States, 578; Whitney v. California, 650 Brandenburg v. Ohio, 78, 130, 160, 202, 256, 366, 429-430, 480, 650, 659 Branti v. Finkel et al., 475, 611 Branzburg v. Hayes, 430 Braunfeld v. Brown, 617 Bray v. Alexandria Clinic, 126 Brecht v. Abrahamson, 430-431 Brennan, William J., Jr., 22, 78, 121, 140, 147, 174, 183, 232, 246, 257, 308, 323, 339, 349, 486, 525, 564, 584, 598, 607, 640, 694; Abington School District v. Schempp, 404; Cooper v. Aaron, 454; Craig v. Boren, 458; Edwards v. Aguillard, 469; Eichman, United States v., 472; Eisenstadt v. Baird, 473; Elrod v. Burns, 475; Frontiero v. Richardson, 484; Furman v. Georgia, 487; Goldberg v. Kelly, 491; Gregg v. Georgia, 495; Jacobellis v. Ohio, 508; Johnson v. Santa Clara County, 511; Katzenbach v. Morgan, 515; Malloy v. Hogan, 538; Memoirs v. Massachusetts, 546; National Association for the Advancement of Colored People v. Button, 562; New York Times Co. v. Sullivan, 569; Orr v. Orr, 579; Plyler v. Doe, 586; Roberts v. United States Jaycees,

The Bill of Rights

599; Rutan v. Republican Party of Illinois, 611; Shapiro v. Thompson, 616; Sherbert v. Verner, 617; Time v. Hill, 634; Weinberger v. Wiesenfeld, 647 Brewer, David J., 445, 509, 695 Brewer v. Williams, 544 Breyer, Stephen G., 695; Good News Club v. Milford Central School, 493; Zadvydas v. Davis, 660 Brown, Archie, 245-246 Brown, Henry B., 502, 535, 695; Holden v. Hardy, 502 Brown, Linda Carol, 432 Brown, United States v., 412, 462 Brown II, 453 Brown v. Allen, 626 Brown v. Board of Education, 22, 50, 68, 425, 431-432, 453, 531 Brown v. Gilnes, 264 Brown v. Mississippi, 329, 433-434 Brown v. Ohio, 176 Brown v. Texas, 548 Brown v. United States, 245 Buchanan v. Warley, 168, 370, 434435, 455 Buckley v. American Constitutional Law Foundation, 265 Burch v. Louisiana, 510 Burger, Warren E., 55, 65, 70, 94, 110, 120, 240-241, 258, 261, 289, 302, 308, 313, 316, 365, 486, 572, 582, 629, 639, 641642, 695; Harris v. New York, 501; Hudson v. Palmer, 503; Lemon v. Kurtzman, 524; Lynch v. Donnelly, 532; Miami Herald Publishing Co. v. Tornillo, 548;

Index / 789

Reed v. Reed, 592; Richmond Newspapers v. Virginia, 596; Walz v. Tax Commission, 642; Wisconsin v. Yoder, 654 Burson v. Freeman, 265 Burstyn v. Wilson, 136, 435-436 Burton, Harold H., 244, 479, 696 Business, regulation of; Holden v. Hardy, 502; Mugler v. Kansas, 555; Munn v. Illinois, 556-557; Nebbia v. New York, 566; Smyth v. Ames, 621; Tyson v. Banton, 637; Wolff Packing Co. v. Court of Industrial Relations, 656 Butler v. Michigan; and Hicklin rule, 218 Butler, Pierce, 554, 577, 581, 588, 625, 628, 696; Morehead v. New York ex rel. Tipaldo, 554 Butler, United States v., 436-437, 556, 625 Byrnes, James F., 470, 696; Edwards v. California, 471 Cable Act, 225 Calandra, United States v., 91, 96, 192, 212 Calder v. Bull, 252, 286 California v. Acevedo, 127, 437-438 California v. Carney, 127, 441 Caltex, United States v., 97 Camara v. Municipal Court, 540 Campbell, John A., 620, 696; and enumerated powers, 107; Slaughterhouse Cases, 619 Cantwell v. Connecticut, 64, 438439, 530 Capital punishment, 9, 137-145, 174; Coker v. Georgia, 449-450;

790 / Index

Furman v. Georgia, 487; Gregg v. Georgia, 494-495; McCleskey v. Kemp, 532-533; Payne v. Tennessee, 581-582; Penry v. Lynaugh, 583-584; Stanford v. Kentucky, 623; Woodson v. North Carolina, 656-657 Capitalism, 168 Cardozo, Benjamin N., 64, 442, 554, 625, 697; Helvering v. Davis, 501; Palko v. Connecticut, 58, 581; Steward Machine Co. v. Davis, 625 Carlson v. Landon, 131 Carlton, United States v., 291 Carolene Products Co., United States v., 55, 59, 68, 231, 266, 288, 439-440 Carroll v. United States, 89, 127, 320, 440-441 Carter v. Carter Coal Co., 441-442, 529 Case law, 13-14 Cases and controversies, 28 Cases v. United States, 85 Catron, John, 697 Censorship, 145-153, 607 Central Hudson Gas and Electric Corp. v. Public Service Commission, 162 Chadwick, United States v., 438 Chambers v. Florida, 330 Champion v. Ames, 114, 442-443 Chandler v. Miller, 619 Chaplinsky v. New Hampshire, 257, 364, 443-444, 630 Chase, Salmon P., 51, 522-523, 697

The Bill of Rights

Chase, Samuel, 286, 697; and Sedition Act, 321 Chicago, Burlington, and Quincy Railroad Co. v. Chicago, 97, 444445 Chicago v. Morales, 445-446 Child labor, 499 Chilling effect, 153-154, 272-273 Chimel v. California, 89, 320, 446447, 572 Chisholm v. Georgia, 49 Church and state, separation of, 298, 312, 409, 469; Allegheny County v. American Civil Liberties Union Greater Pittsburgh Chapter, 410-411; Lemon v. Kurtzman, 523-524; Wallace v. Jaffree, 640642 Church of Jesus Christ of Latterday Saints, 305, 463, 595 Church of Lukumi Babalu Aye v. Hialeah, 447-448 Citizenship, 61, 225; Scott v. Sandford, 612-614 City of Renton v. Playtime Theaters, 260 Civil Rights Act of 1866, 156 Civil liberties. See Civil rights and liberties Civil Rights Act of 1866, 156, 455; Runyon v. McCrary, 609 Civil Rights Act of 1875, 53 Civil Rights Act of 1957, 157 Civil Rights Act of 1960, 157 Civil Rights Act of 1964, 122, 157, 454, 643 Civil Rights Act of 1968; and Indian Bill of Rights, 220

The Bill of Rights

Civil rights and liberties, 154-158; Cruikshank, United States v., 458459 Civil Rights Cases, 53, 157 Civil War, 51 Civil War Amendments, 107 Clark, Tom C., 244-245, 313, 403, 464, 697; Abington School District v. Schempp, 403; Burstyn v. Wilson, 436; Mapp v. Ohio, 539 Clarke, John H., 159-160, 698 Clay v. United States, 167 Clear and present danger test, 77, 129, 158-161, 189, 197, 200, 366, 465, 576, 612 Cleary, Edward J., 215, 217 Cleveland Board of Education v. Loudermill, 179, 291 Clifford, Nathan, 698 Cockburn, Alexander, 218 Coerced confessions, 329; Brown v. Mississippi, 433 Coffin v. United States, 267 Cohen v. California, 195, 261, 352, 448 Cohen v. Cowles Media Co., 449 Cohens v. Virginia, 49, 344 Coker v. Georgia, 144, 449-450 Cold War, 332, 465 Cole v. Richardson, 474 Colegrove v. Green, 492 Colgrove v. Battin, 104 Collector v. Day, 450-452 Collins v. City of Harker Heights, 178 Commerce, regulation of; Carter v. Carter Coal Co., 441-442; Darby Lumber Co., United States v., 462; McCray v. United States, 534-535;

Index / 791

Mulford v. Smith, 555-556; Munn v. Illinois, 556-557 Commerce clause, 161-162; Lopez, United States v., 528-529; National League of Cities v. Usery, 563-564; Printz v. United States, 589-590 Commercial speech, 162-163; Bates v. State Bar of Arizona, 418; Bigelow v. Virginia, 422-423 Common law, 15-16 Communications Decency Act, 262, 338, 594 Communism, 119, 125, 160, 351, 638 Communist Party, 63, 78, 131, 160, 195, 332, 410, 412, 452, 464, 576, 597, 632, 645, 657 Communist Party v. Subversive Activities Control Board, 410, 452, 598 Compulsory sterilization; Skinner v. Oklahoma, 617-618 Comstock, Anthony, 133, 163 Comstock Act of 1873, 133, 163164 Concrete Pipe and Products of California v. Construction Laborers Pension Trust, 178 Confessional Unmasked, The, 218 Confrontation of witnesses; Pointer v. Texas, 587 Congress, U.S. Constitution and, 33-34 Congressional power of investigation; Barenblatt v. United States, 414; Ullman v. United States, 638; Watkins v. United States, 644-645

792 / Index

Conscientious objection, 164-167 Conscription, 164, 606; Selective Draft Law Cases, 615-616 Constitution, U.S., 31, 33-39, 48, 379; and amendments, 25; framing of, 3; Jacobson v. Massachusetts, 508-509. See also individual amendments Constitutional Convention, 31 Constitutional interpretation, 1724, 252 Constitutional law, 15, 25-30 Constitutionalism, 25 Continental Congress, 43 Contraception. See Birth control and contraception Contract, freedom of, 58, 167-170, 180, 276, 408, 525; Adair v. United States, 404-405; Holden v. Hardy, 502; Legal Tender Cases, 522-523; Morehead v. New York ex rel. Tipaldo, 554; West Coast Hotel Co. v. Parrish, 648-649; Wolff Packing Co. v. Court of Industrial Relations, 656 Contracts clause; Keystone Bituminous Coal Association v. DeBenedictis, 516-517 Coode, John, 46 Cooper v. Aaron, 50, 344, 453-454 Coppage v. Kansas, 168, 404 Copyright, 340 Corfield v. Coryell, 58, 281 Corrigan v. Buckley, 454-455 Costello v. United States, 96 Counsel, right to, 99, 170-173, 222, 412, 511; Betts v. Brady, 421-422; Gideon v. Wainwright, 488-490; Massiah v. United States,

The Bill of Rights

543-544; Miranda v. Arizona, 550; Powell v. Alabama, 587-588; Wade, United States v., 640 Counselman v. Hitchcock, 455-456 Cox Broadcasting Corporation v. Cohn, 274 Cox v. Louisiana, 352, 456-457 Cox v. New Hampshire, 196, 457 Coy v. Iowa, 102 Craig v. Boren, 232, 458, 485, 579, 592 Criminal syndicalism, 429, 463, 650 Cruel and unusual punishment, 9, 105, 140, 173-174; and English Bill of Rights, 46; Louisiana ex rel. Francis v. Resweber, 529; Robinson v. California, 599-600; Rummel v. Estelle, 608-609; Solem v. Helm, 622-623; Trop v. Dulles, 635; Weems v. United States, 646647 Cruikshank, United States v., 85, 458-459 Cruzan v. Director, Missouri Department of Health, 184, 279, 459-461, 644 Cummings v. Missouri, 461-462 Curtis, Benjamin R., 559, 698; Murray’s Lessee v. Hoboken Land and Improvement Co., 559 Curtis Publishing Co. v. Butts, 239 Cushing, William, 698 Customs Service, U.S., 276 Dale, James, 427 Damage awards; BMW of North America v. Gore, 423 Daniel, Peter V., 698

The Bill of Rights

Daniels v. Williams, 178 Darby Lumber Co., United States v., 55, 114, 346, 462 Davis, David, 698 Davis v. Beason, 306, 463 Day, William R., 435, 699; Buchanan v. Warley, 435; Hammer v. Dagenhart, 499; Weeks v. United States, 646 Death penalty. See Capital punishment Debs v. United States, 128-129 Decision making, 25 Declaration of Independence, 4044, 252, 375; and Fourteenth Amendment, 68; and Virginia Declaration of Rights, 73 Defendants’ rights, 99, 170, 190; Brown v. Mississippi, 433-434; Escobedo v. Illinois, 477-478; Mallory v. United States, 537 DeFunis v. Odegaard, 28 DeJonge v. Oregon, 63, 463-464 Dennis v. United States, 160, 195, 199, 201, 325, 429, 464-465, 657 Desegregation; Cooper v. Aaron, 453-454 DeShaney v. Winnebago County Department of Social Services, 465466 Di Re, United States v., 127 Dickey v. Florida, 415 Discretion, 269 Discrimination, 125; and death penalty, 139 Discrimination, employment, 122, 510; Personnel Administrator of Massachusetts v. Feeney, 584-585; Washington v. Davis, 642-643

Index / 793

Discrimination, race, 59, 67-68, 99, 122, 142-143, 156-157, 162, 172, 232-233, 249, 370, 419, 439, 471, 486, 533, 626; Japanese American relocation, 519; Loving v. Virginia, 530-531; Runyon v. McCrary, 609 Discrimination, sex, 232, 420, 510; Ballard v. United States, 413; Craig v. Boren, 458; Frontiero v. Richardson, 484-485; and Native Americans, 220; New York State Club Association v. City of New York, 567-568; Personnel Administrator of Massachusetts v. Feeney, 584-585; Reed v. Reed, 592; Roberts v. United States Jaycees, 598-599; Rostker v. Goldberg, 606; Weinberger v. Wiesenfeld, 647 Dobbins v. Erie County, 451 Doe v. Bolton, 28, 281, 602 Dolan v. City of Tigard, 97, 290, 359, 370, 466-467 Dombrowski v. Pfister, 659 Double jeopardy, 6, 64, 95, 174177; Benton v. Maryland, 420; Kansas v. Hendricks, 512; Lanza, United States v., 521-522; Palko v. Connecticut, 581; Ursery, United States v., 639 Douglas, William O., 109, 194, 244, 277, 598, 659, 699; Adderley v. Florida, 352; Argersinger v. Hamlin, 413; Ballard v. United States, 413; Berman v. Parker, 370; Betts v. Brady, 422; Elfbrandt v. Russell, 474; and First Amendment absolutism, 335;

794 / Index

Griffin v. California, 496; Griswold v. Connecticut, 181, 496; Kent v. Dulles, 516; Murdock v. Pennsylvania, 557; on “open road,” 446; Skinner v. Oklahoma, 618; Terminiello v. Chicago, 201, 630; Zorach v. Clauson, 297, 661 Douglas v. California, 100 Draft Act of 1917, 166 Draper v. United States, 284 Drug testing, 276 Dual federalism, 51, 53, 345, 462, 499 Dual sovereignty, 176, 347 Due process, procedural, 177-180, 405; Chicago v. Morales, 445-446; DeShaney v. Winnebago County Department of Social Services, 465; Goldberg v. Kelly, 491; Murray’s Lessee v. Hoboken Land and Improvement Co., 559 Due process, substantive, 167, 180-185, 278, 285, 408, 434, 502, 509, 525, 557, 585, 621, 649; BMW of North America v. Gore, 423; Bolling v. Sharpe, 424425; Brown v. Board of Education, 431-432; Chicago, Burlington, and Quincy Railroad Co. v. Chicago, 444-445; Coker v. Georgia, 449450; Korematsu v. United States, 518-519; Meyer v. Nebraska, 546; Moore v. City of East Cleveland, 552-553; O’Gorman and Young v. Hartford Fire Insurance Co., 576577; Rochin v. California, 600601 Dun and Bradstreet v. Greenmoss Builders, 241

The Bill of Rights

Duncan v. Louisiana, 65, 100, 235, 468, 537 Duvall, Gabriel, 699 E. C. Knight Co., United States v., 499 Eastern Enterprises v. Apfel, 292 Eastland v. United States Servicemen’s Club, 414 Edmonson v. Leesville Concrete Co., 468-469 Edwards v. Aguillard, 301, 469-470, 477 Edwards v. California, 470-471 Edwards v. South Carolina, 264, 471-472 Eichman, United States v., 206, 351, 472-473, 633 Eighth Amendment, 9, 105, 144, 173, 392, 657; and equality, 140; Robinson v. California, 599-600 Eisenhower, Dwight D., 157, 243, 453-454 Eisenstadt v. Baird, 182, 209, 278, 473, 602 Elastic clause, 185-187, 536 Eleventh Amendment, 49, 393 Elfbrandt v. Russell, 245, 473-474 Elkins v. United States, 191, 332, 655 Ellsberg, Daniel, 147, 570 Ellsworth, Oliver, 322, 699 Elrod v. Burns, 474-475, 611 Employment Division, Department of Human Resources v. Smith, 60, 309, 424, 448, 475-476, 617, 654 Endo, Ex parte, 229 Enforcement Act of 1870, 459 Engblom v. Carey, 87

The Bill of Rights

Engel v. Vitale, 301, 312, 403, 476477, 641 English Bill of Rights, 45-47, 105, 130, 173, 263 Enmund v. Florida, 144 Epperson v. Arkansas, 120, 469, 477 Equal protection clause, 406, 484, 618, 626; Brown v. Board of Education, 431-432; Eisenstadt v. Baird, 473; Korematsu v. United States, 518-519 Equality, 67, 300, 473; and Eighth Amendment, 140; principle of, 23 Erdman Act, 404 Erie Railroad Co. v. Tompkins, 16 Erwin, Sam, 220 Erznoznik v. Jacksonville, 260 Escobedo v. Illinois, 172, 223, 477478, 490, 543 Espionage Acts, 77, 128, 158, 187189, 195, 200, 328, 612 Euclid v. Ambler Realty Co., 287, 357, 369 Everson v. Board of Education of Ewing Township, 298, 476, 478480, 506 Ex parte Endo, 519 Ex post facto laws; Kansas v. Hendricks, 512 Exclusionary rule, 190-194, 315, 320, 332; Boyd v. United States, 428-429; “good-faith exception to,” 316; Massiah v. United States, 543-544; Weeks v. United States, 645-646; Wolf v. Colorado, 655 Executive branch, U.S. constitution and, 34-35 Executive Order 9835, 243

Index / 795

Executive Order 10540, 243 Expressive conduct; Barnes v. Glen Theatre, 415-416 Fair Labor Standards Act, 55, 462 Falwell, Jerry, 505 Fanny Hill (Cleland), 546 Federal Communications Commission (FCC), 151, 261 Federal Communications Commission v. Pacifica Foundation, 261 Federal Power Commission v. Hope Natural Gas Co., 621 Federalism, 35-36, 48-56, 112, 346; Collector v. Day, 450-452; McCulloch v. Maryland, 535-536; Younger v. Harris, 659-660 Federalist, The, 48 Federalist Party, 271 Feiner v. New York, 480, 630 Feldman v. United States, 558 Feminist movement. See Women’s movement Ferguson v. City of Charleston, 480481 Field, Stephen J., 461, 699; Cummings v. Missouri, 461; Davis v. Beason, 463; Mugler v. Kansas, 555; Munn v. Illinois, 557; property rights, 287 Fifth Amendment, 6, 93-98, 178, 285, 329, 354, 391, 602; Boyd v. United States, 428; equal protection clause, 484; and inverse incorporation, 67; Penn Central Transportation Co. v. City of New York, 583; Talton v. Mayes, 628 Fighting words, 443

796 / Index

Finality of decision, 27 First Amendment, 4, 77-83, 187, 257, 263, 266, 298, 322, 334, 350, 391; controversies, 79 First Amendment absolutism, 5, 23, 194-197, 199, 335 First Amendment balancing, 197200, 364, 412, 414 First Amendment speech tests, 77, 128, 158, 197, 200-202 First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 290, 359, 369, 481482 Fiscal and monetary powers; Legal Tender Cases, 522-523 Fiske v. Kansas, 63 Flag desecration, 203-207; Eichman, United States v., 472473; Texas v. Johnson, 632-633 Flag Protection Act, 206, 472 Flast v. Cohen, 486 Fletcher v. Peck, 107 Florida Bar v. Went for It, 418 Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 178 Florida Star v. B.J.F., 274 Florida v. Bostick, 482-483 Flynt, Larry, 505 Footnote four. See Carolene Products Co., United States v. Ford v. Wainwright, 584 Fortas, Abe, 489, 598, 700; Epperson v. Arkansas, 477; Gault, In re, 488; Tinker v. Des Moines Independent Community School District, 634

The Bill of Rights

Forty-four Liquormart v. Rhode Island, 422 Foucha v. Louisiana, 179 Four Horsemen, 169 Fourteenth Amendment, 61, 156, 167, 190, 225, 281, 285, 394, 566, 602, 621, 626, 637; and Declaration of Independence, 68; and fundamental rights, 57 Fourth Amendment, 6, 88-92, 190, 283, 313-318, 391; Boyd v. United States, 428; Ross, United States v., 604-605; Stone v. Powell, 625-626 Frank v. Mangum, 483-484, 553 Frankfurter, Felix, 18, 65, 120, 199, 244, 266, 325, 405, 465, 479, 506, 516, 520, 539, 558, 630, 700; Communist Party v. Subversive Activities Control Board, 452; Gomillion v. Lightfoot, 492; Mallory v. United States, 537; Rochin v. California, 600; Ullman v. United States, 638; Wolf v. Colorado, 655 Franklin, Benjamin, 41 Freedman v. Maryland, 436 Freedom of Access to Clinic Entrances Act, 256 Frisby v. Schultz, 294 Frontiero v. Richardson, 484-485 Frothingham v. Mellon, 485-486, 542 Fry v. United States, 115 Fuller, Melville W., 534, 701 Fuller, United States v., 97 Fullilove v. Klutznick, 486, 597 Fundamental rights, 57-60, 266 Furman v. Georgia, 140, 174, 487, 494, 657

The Bill of Rights

Gag order, 207-208 Gagnon v. Scarpelli, 223 Gannett Co. v. DePasquale, 596 Garcia v. San Antonio Metropolitan Transit Authority, 55, 346, 528, 564 Garner v. Public Works of the City of Los Angeles, 244 Garrison v. Louisiana, 323 Gault, In re, 179, 488 Gay and lesbian rights, 208-210, 504; Bowers v. Hardwick, 426; Romer v. Evans, 604 Gender issues, 592; Orr v. Orr, 578579 General welfare clause; Helvering v. Davis, 501 Gentlemen’s Agreement, 226 Georgia v. McCollum, 420 Georgia v. Stanton, 52 Gerende v. Board of Supervisors of Elections, 244 Gerrymandering; Gomillion v. Lightfoot, 492 Gertz v. Robert Welch, 323, 634 Gibbons v. Ogden, 50, 161 Gibson v. Mississippi, 68 Gideon v. Wainwright, 65, 100, 172, 222, 412, 422, 488-490 Gillette v. United States, 166 Ginsburg, Ruth Bader, 701; Agostini v. Felton, 409 Gitlow v. New York, 63, 119, 181, 201, 490-491, 530, 657 Glorious Revolution, 45 Goldberg v. Kelly, 179, 291, 491 Goldberg, Arthur J., 701; Abington School District v. Schempp, 404; Escobedo v. Illinois, 478; Jacobellis

Index / 797

v. Ohio, 508; Murphy v. Waterfront Commission of New York, 558; and Ninth Amendment, 109-110 Goldblatt v. Hempstead, 358 Goldman v. Weinberger, 309 Gomillion v. Lightfoot, 492 Good faith exception, 193; Leon, United States v., 524-525 Good News Club v. Milford Central School, 492-493 Grace, United States v., 264 Graham v. Richardson, 493-494 Grand jury, 210-213; Maxwell v. Dow, 545 Graves v. New York ex rel. O’Keefe, 452 Gray, Horace, 701 Grayned v. Rockford, 362 Greer v. Spock, 295 Gregg v. Georgia, 141, 174, 450, 487, 494-495, 533, 657 Grier, Robert C., 702 Griffin v. California, 495-496 Griffin v. Illinois, 221 Griggs v. Duke Power Co., 643 Griswold v. Connecticut, 59, 109, 125, 134, 181, 209, 277, 473, 496, 602 Grosjean v. American Press Co., 496497 Gross v. Lopez, 491 Gun-free School Zone Act, 528 Habeas corpus, 23, 51; Brecht v. Abrahamson, 430-431; and death penalty, 144; Frank v. Mangum, 483-484; and Indian Bill of

798 / Index

Rights, 220; Moore v. Dempsey, 553; Stone v. Powell, 625-626 Hadacheck v. Sebastian, 370 Hague v. Congress of Industrial Organizations, 64, 124, 497-498 Halper, United States v., 639 Halter v. Nebraska, 204 Hamilton, Alexander, 33, 112, 114, 186, 280, 349 Hamilton v. Board of Regents of the University of California, 63 Hammer v. Dagenhart, 54, 114, 345, 462, 498-499 Hand, Learned, 202, 366, 607 Harlan, John Marshall, 65, 545, 702; Adair v. United States, 404; Champion v. Ames, 443; Chicago, Burlington, and Quincy Railroad Co. v. Chicago, 445; Gibson v. Mississippi, 68; Jacobson v. Massachusetts, 509; Lochner v. New York, 527; Maxwell v. Dow, 545; Mugler v. Kansas, 555; Twining v. New Jersey, 637 Harlan, John Marshall, II, 478, 488, 496, 505, 508, 515, 517, 538-539, 562, 572, 598, 616, 635, 702; Barenblatt v. United States, 414; Cohen v. California, 448; National Association for the Advancement of Colored People v. Alabama, 561; and obscenity, 608; Wade, United States v., 640; Yates v. United States, 657 Harmelin v. Michigan, 623 Harris v. McRae, 499-500 Harris v. New York, 94, 330, 500501 Harriss, United States v., 264

The Bill of Rights

Hartzel v. United States, 189 Hatch Act, 109, 213 Hate crimes, 214-217 Havens, United States v., 91 Hawaii Housing Authority v. Midkiff, 296 Hazelwood School District v. Kuhlmeier, 121 Heart of Atlanta Motel v. United States, 162 Heath v. Alabama, 177 Heffron v. International Society for Krishna Consciousness, 361 Helvering v. Davis, 501 Helvering v. Gerhardt, 452 Henry, Patrick, 57 Herbert v. Louisiana, 95 Hicklin rule, 217-218 Hipolite Egg Co. v. United States, 443 Hirabayashi v. United States, 68, 228, 518 Hobbes, Thomas, 252 Hoke v. United States, 443 Holden v. Hardy, 168, 502, 526 Holland v. Illinois, 237 Holmes, Oliver Wendell, 404, 430, 484, 547, 586, 703; Abrams v. United States, 78; and clear and present danger test, 159, 200, 366, 576; and First Amendment, 77-78, 119, 128; and free speech, 159, 341; Gitlow v. New York, 491; Hammer v. Dagenhart, 499; Lochner v. New York, 180, 527; Missouri v. Holland, 552; Moore v. Dempsey, 553; and property rights, 290; Schenck v. United States, 188, 195, 200, 366, 612; and Sedition Act, 323; on

The Bill of Rights

truth, 336; Whitney v. California, 650 Horsley, Neil, 255 House Un-American Activities Committee, 414, 645 Housing discrimination; Buchanan v. Warley, 434-435 Houston v. Hill, 154 Howard Beach, New York, 214 Hoyt v. Florida, 629 Hudson and Goodwin, United States v., 16 Hudson v. Palmer, 503 Hudson v. Parker, 131 Hughes, Charles Evans, 108, 169, 439, 703; Brown v. Mississippi, 434; DeJonge v. Oregon, 464; Lovell v. City of Griffin, 530; Norris v. Alabama, 575; Stromberg v. California, 627; West Coast Hotel Co. v. Parrish, 649 Hunt, Ward, 703 Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, 503-504, 568, 599 Hurtado v. California, 96, 211, 504505 Hustler Magazine v. Falwell, 241, 505-506 IBR. See Indian Bill of Rights ICRA. See Indian Bill of Rights Idaho v. Wright, 367, 541 Illinois ex rel. McCollum v. Board of Education, 64, 297, 506-507, 661 Illinois v. Gates, 284 Illinois v. Krull, 193, 525 Illinois v. Perkins, 95, 248 Illinois v. Rodriguez, 316

Index / 799

Illinois v. Wardlow, 507 Immigrant rights; Graham v. Richardson, 493-494; Japanese American relocation, 224-230; Nguyen v. Immigration and Naturalization Service, 574; Plyler v. Doe, 586-587; Zadvydas v. Davis, 660-661. See also Alien rights and naturalization Immigration and Nationality Act of 1952, 516 Immigration and Naturalization Service, 660 Immigration Reform and Immigrant Responsibility Act of 1996, 587 Immunity against selfincrimination; Ullman v. United States, 638 In re Gault. See Gault, In re Incorporation doctrine, 61-66, 70, 99, 155, 298, 421, 438; Adamson v. California, 405-406; Barron v. Baltimore, 416; Chicago, Burlington, and Quincy Railroad Co. v. Chicago, 444-445; Hurtado v. California, 504-505; Presser v. Illinois, 588-589; Rochin v. California, 600-601; Wolf v. Colorado, 655 Indian Bill of Rights, 219-221 Indian Civil Rights Act of 1968. See Indian Bill of Rights Indians. See Native Americans Indigent criminal defendants, 99, 221-224, 421, 488; Argersinger v. Hamlin, 412-413; Johnson v. Zerbst, 511-512

800 / Index

Innocence, presumption of, 8, 131, 267-269; and refusal to testify, 495 INS. See Immigration and Naturalization Service International Workers of the World, 649 International Workers Order, 243 Internet, 262; and free speech, 334, 338, 594. See also World Wide Web Interstate commerce, 462, 499; American Communications Association v. Douds, 411-412; Champion v. Ames, 442 Inverse incorporation, 67-69; Brown v. Board of Education, 431432 Iredell, James, 703 Island Trees School District v. Pico, 121 Jackson, Howell E., 704 Jackson, Robert H., 351, 630, 704 Jacobellis v. Ohio, 257, 508 Jacobson v. Massachusetts, 460, 508509 James Daniel Good Real Property, United States v., 179 James II, King, 45 Japanese American relocation, 224-230, 233, 425, 518-519 Jay, John, 37-38, 349, 704 Jefferson, Thomas, 3, 5, 42-43, 146, 271, 322; and Alien and Sedition Acts, 327; and national bank, 185; and states’ rights, 113

The Bill of Rights

Jehovah’s Witnesses, 439, 457, 549, 557 Jenkins v. Georgia, 151 Jerome v. United States, 95 Jews; discrimination against, 483; Skokie, Illinois, 337 Johnson v. Louisiana, 509-510 Johnson v. Santa Clara County, 510511 Johnson v. Zerbst, 100, 171, 222, 511-512 Johnson, Thomas, 704 Johnson, William, 704 Joint Anti-Fascist Refugee Committee v. McGrath, 243 Jones v. Alfred H. Mayer Co., 609 Judicial activism, 19 Judicial branch, U.S. Constitution and, 35 Judicial powers; Cooper v. Aaron, 453-454 Judicial review, 18, 28, 38 Judicial revolution of 1937, 169 Judicial scrutiny, 231-234, 579; footnote four of Carolene Products Co., United States v., 439440; levels of, 406, 447, 458, 485 Judicial self-restraint., 18 Judiciary Act of 1789, 67 Jury, trial by, 7, 100, 104, 221, 234236; Duncan v. Louisiana, 468; and English Bill of Rights, 46; Frank v. Mangum, 483-484; Johnson v. Louisiana, 509-510; Moore v. Dempsey, 553; Norris v. Alabama, 575; Pacific Mutual Life Insurance Co. v. Haslip, 580; Richmond Newspapers v. Virginia, 596; Taylor v. Louisiana, 628-629

The Bill of Rights

Jury composition and size, 104, 236-237, 413; Batson v. Kentucky, 419-420; Edmonson v. Leesville Concrete Co., 468-469; Maxwell v. Dow, 545; Norris v. Alabama, 575; Strauder v. West Virginia, 626627; Williams v. Florida, 651-652; Williams v. Mississippi, 652-653 Jury Selection and Service Act, 236 Justiciability, 28 Juvenile justice, 235; Gault, In re, 488; McKeiver v. Pennsylvania, 536-537; Stanford v. Kentucky, 623 Kahn v. Shevin, 647 Kaiser Aetna v. United States, 359 Kansas v. Hendricks, 96, 176, 512 Kastigar v. United States, 456, 512513, 558 Katz v. United States, 87, 91, 275, 503, 513-514, 578 Katzenbach v. Morgan, 514-515 Keating-Owen Child Labor Act, 499 Kelly v. Johnson, 278 Kennedy, Anthony M., 95, 292, 704; Boerne v. Flores, 424; Church of Lukumi Babalu Aye v. Hialeah, 447; Communist Party v. Subversive Activities Control Board, 411; Davis v. Beason, 463; Edmonson v. Leesville Concrete Co., 469; and establishment clause, 303; Maryland v. Buie, 541; Masson v. New Yorker Magazine, 544; Minnesota v. Carter, 550; National Treasury Employees

Index / 801

Union v. Von Raab, 564; Nguyen v. Immigration and Naturalization Service, 574; Pacific Mutual Life Insurance Co. v. Haslip, 580; Romer v. Evans, 604; Rutan v. Republican Party of Illinois, 611; Skinner v. Railway Labor Executives Association, 618 Kent v. Dulles, 515-516 Keyishian v. Board of Regents of the University of the State of New York, 120, 246 Keystone Bituminous Coal Association v. DeBenedictis, 516-517, 531 Klopfer v. North Carolina, 65, 342, 517 Kneeland, Abner, 136 Korematsu v. United States, 59, 68, 228, 232-233, 518-519 Kovacs v. Cooper, 266 Kunz v. New York, 520 Kyllo v. United States, 520-521 Labor, 404, 656; Thornhill v. Alabama, 633 Labor Management Relations Act of 1947, 243 Lamar, Joseph, 705 Lamar, Lucius Q. C., 705 Lamb’s Chapel v. Center Moriches Union Free School District, 300, 493 Lanza, United States v., 95, 521-522 Larkin v. Grendel’s Den, 196 Lassiter v. Northampton County Board of Elections, 515 Lee, Thomas Ludwell, 73 Lee, United States v., 309 Lee v. Weisman, 301, 313

802 / Index

Legal Defense Fund, NAACP, 139 Legal Tender Act, 522 Legal Tender Cases, 522-523 Legislative entitlements, 291 Leisler, Jacob, 46 Lem Wood v. Oregon, 96 Lemon test, 80, 409, 411, 469, 523 Lemon v. Kurtzman, 299, 313, 411, 523-524 Leon, United States v., 91, 193, 316, 524-525 Lewis v. United States, 100 Libel, 237-242, 274, 365; Hustler Magazine v. Falwell, 505-506; Masson v. New Yorker Magazine, 544; New York Times Co. v. Sullivan, 568-569; Time v. Hill, 633-634 “Liberty interest,” 278 Linkletter v. Walker, 91 Little Rock, Arkansas, school segregation crisis, 453 Livingston, Brockholst, 327, 705 Lochner v. New York, 54, 168, 180, 266, 277, 287, 525-527 Locke, John, 251 Logan v. United States, 95 Lone Wolf v. Hitchcock, 527-528 Lopez, United States v., 55, 84, 348, 528-529, 564 Lottery Case, 443 Louisiana ex rel. Francis v. Resweber, 139, 529 Lovell v. City of Griffin, 362, 529530 Loving v. Virginia, 210, 249-250, 277, 530-531

The Bill of Rights

Loyalty oaths, 242-246; Cummings v. Missouri, 461-462; Elfbrandt v. Russell, 473-474 Loyalty Review Board, 243 Lucas v. South Carolina Coastal Council, 97, 290, 358, 370, 531532 Lukumi Babalu Aye. See Church of Lukumi Babalu Aye v. Hialeah Lurton, Horace H., 345, 705 Lynch v. Donnelly, 302, 411, 532 Lynch v. Household Finance Corp., 289 Lyng v. Northwest Indian Cemetery Protective Association, 309 McCardle, Ex parte, 52 McCarran Act, 410, 452 McCarran-Walter Act, 230 McCleskey v. Kemp, 143, 495, 532533, 643 McCray v. United States, 534-535 McCulloch v. Maryland, 50, 106, 114, 186, 343, 534-536 McGautha v. California, 487 McIntyre v. Ohio Elections Commission, 265 McKane v. Durston, 131 McKeiver v. Pennsylvania, 536-537 McKenna, Joseph, 646, 705; Weems v. United States, 647 McKinley, John, 705 McLean, John, 705 McLean v. Arkansas Board of Education, 477 McNabb v. United States, 537 McReynolds, James C., 585, 706; Meyer v. Nebraska, 547; Nebbia v.

The Bill of Rights

New York, 566; Pierce v. Society of Sisters, 585 Madison, James, 3-4, 10-11, 31, 3738, 48, 57, 88, 106, 109, 112113, 155, 349; and Virginia Bill of Rights, 73 Madsen v. Women’s Health Center, 363 Magna Carta, 177, 263 Maher v. Roe, 500 Mallory v. United States, 537 Malloy v. Hogan, 65, 330, 406, 538, 551, 558, 601, 637 Manufacturing, regulation of; Darby Lumber Co., United States v., 462; Hammer v. Dagenhart, 498-499; Mugler v. Kansas, 555 Mapp v. Ohio, 65, 91, 135, 191, 315, 332, 538-539, 601, 655 Marbury v. Madison, 16-17, 28 Marriage; Loving v. Virginia, 530531; Reynolds v. United States, 594-595 Marsh v. Chambers, 302, 642 Marshall, John, 16-18, 50-51, 106107, 112, 114, 161, 186, 195, 344, 417, 706; McCulloch v. Maryland, 451, 535 Marshall, Thurgood, 140-141, 143, 147, 155, 174, 183, 259, 336, 598, 605, 623, 706; Benton v. Maryland, 420; Brown v. Board of Education, 432; Furman v. Georgia, 487; Gregg v. Georgia, 495; Rostker v. Goldberg, 606; Stanley v. Georgia, 624 Marshall v. Barlow’s, 540 Marshall v. Jerrico, 178 Martin, Luther, 344

Index / 803

Martin v. Hunter’s Lessee, 49 Martinez-Fuerte, United States v., 548 Maryland v. Buie, 447, 540-541 Maryland v. Craig, 102, 368, 541542 Mason, George, 3, 73-74 Massachusetts Board of Retirement v. Murgia, 231 Massachusetts v. Mellon, 542-543 Massiah v. United States, 543-544 Masson v. New Yorker Magazine, 241, 544 Mather, Cotton, 46 Mathews v. Eldridge, 178, 491 Matthews, Stanley, 505, 706; Hurtado v. California, 504 Maximum-hour laws, 502; Lochner v. New York, 525-527 Maxwell v. Dow, 63, 545 Memoirs v. Massachusetts, 150, 546 Memphis Light, Gas and Water Division v. Craft, 179, 291 Merryman, Ex parte, 51 Metro Broadcasting v. Federal Communications Commission, 406 Meyer v. Nebraska, 277, 546-547, 586 Miami Herald Publishing Co. v. Tornillo, 547-548 Michigan Department of State Police v. Sitz, 90, 548 Michigan v. Long, 70 Michigan v. Mosley, 94 Michigan v. Tucker, 94 Migratory Bird Treaty Act of 1918, 552 Military and the Court, 87 Milkovich v. Lorain Journal Co., 241

804 / Index

Milkwagon Drivers Union v. Meadowmoor Dairies, 352 Miller, Samuel F., 707 Miller, United States v., 85 Miller v. California, 150, 258, 339, 365, 573, 594 Miller v. Schoene, 356 Milligan, Ex parte, 51 Milton, John, 336 Minersville School District v. Gobitis, 351, 548-549 Minimum-wage laws, 554; Adkins v. Children’s Hospital, 407-409 Minneapolis, Minnesota, 272 Minnesota Star and Tribune Co. v. Minnesota Commissioner of Revenue, 497 Minnesota v. Carter, 549-550 Minnesota v. Dickerson, 89, 317 Minnesota v. Olson, 550 Minton, Sherman, 244-245, 707 Miranda, Ernesto, 550 Miranda rights, 246-249, 550; Brecht v. Abrahamson, 430-431; Harris v. New York, 500-501 Miranda v. Arizona, 94, 172, 246, 330, 431, 478, 550, 640 Miscegenation laws, 249-250 Mississippi v. Johnson, 51 Missouri Compromise Act of 1850, 107 Missouri v. Holland, 551-552 Montana v. Egelhoff, 368 Moody, William H., 636, 707; Twining v. New Jersey, 636 Moore, Alfred, 707 Moore v. City of East Cleveland, 552553 Moore v. Dempsey, 484, 553

The Bill of Rights

Moore v. East Cleveland, 278 Morehead v. New York ex rel. Tipaldo, 169, 554, 649 Mormons. See Church of Jesus Christ of Latter-day Saints Mugler v. Kansas, 555 Mulford v. Smith, 437, 555-556 Muller v. Oregon, 169 Munn v. Illinois, 287, 556-557 Murdock v. Pennsylvania, 59, 557558 Murphy, Frank, 64, 66, 364, 366, 519, 707; Betts v. Brady, 422; Chaplinsky v. New Hampshire, 443; Korematsu v. United States, 68; Thornhill v. Alabama, 633 Murphy v. Waterfront Commission of New York, 558 Murray v. Curlett, 403 Murray’s Lessee v. Hoboken Land and Improvement Co., 559 Muskrat v. United States, 28 Mutual Film Corp. v. Industrial Commission of Ohio, 436 NAACP. See National Association for the Advancement of Colored People National Association for the Advancement of Colored People, 434, 561; Brown v. Board of Education, 431 National Association for the Advancement of Colored People v. Alabama, 82, 125, 276, 560-561 National Association for the Advancement of Colored People v. Button, 561-562

The Bill of Rights

National Association for the Advancement of Colored People v. Caliborn Hardware Co., 256 National Council of AmericanSoviet Friendship, 243 National Endowment for the Arts, 337 National Endowment for the Arts v. Finley, 562-563 National Labor Relations Board v. Jones and Laughlin Steel Corp., 170, 442 National League of Cities v. Usery, 55, 346, 563-564 National Treasury Employees Union v. Von Raab, 90, 276, 564-565, 619 Nationality Act of 1790, 225 Native Americans, 80; Indian Bill of Rights, 219-221; Lone Wolf v. Hitchcock, 527-528; and marriage, 249-250; and religion, 309, 475; religious sites, 309; Seminole Tribe v. Florida, 55; and sex discrimination, 220; sovereignty, 219, 628; Talton v. Mayes, 219, 628; and women’s rights, 220 Natural law, 251-253 Naturalization Act of 1790, 67 Near v. Minnesota, 147, 272, 439, 565, 570 Nebbia v. New York, 557, 566, 656 Nebraska Press Association v. Stuart, 208, 566-567, 596 Necessary and proper clause, 536 Nectow v. City of Cambridge, 357 Nelson, Samuel, 451, 708; Collector v. Day, 451

Index / 805

New Deal, 288 New York, 246 New York Board of Regents, 245 New York State Club Association v. City of New York, 125, 567-568, 599 New York Times Co. v. Sullivan, 78, 238, 323, 328, 339, 365, 444, 544, 568-569 New York Times Co. v. United States, 147, 569-572, 596 New York Times, The, 272 New York v. Belton, 127, 572 New York v. Ferber, 148, 259, 572574, 579 New York v. Quarles, 95, 248, 330 New York v. United States, 347 Newsroom searches, 253-255; Zurcher v. The Stanford Daily, 662-663 Nguyen v. Immigration and Naturalization Service, 574 Ninth Amendment, 10, 106-111, 182, 392, 602 Nix v. Williams, 91 Nixon, Richard M., 638 Nixon, United States v., 24 Nollan v. California Coastal Commission, 290, 359 Norris, Clarence, 575 Norris v. Alabama, 575 North Carolina v. Butler, 247 Noto v. United States, 575-576 Nullification, 114 Nuremberg Files, 255-256 O’Brien, United States v., 353, 416, 448

806 / Index

Obscenity and pornography, 134, 148-152, 163-164, 257-263, 365, 594, 607; Hicklin rule, 217-218; Jacobellis v. Ohio, 508; Mapp v. Ohio, 538-539; Memoirs v. Massachusetts, 546; New York v. Ferber, 572-574; Osborne v. Ohio, 579-580; Stanley v. Georgia, 624 Occupational Safety and Hazards Act (OSHA), 540 O’Connor, Sandra Day, 120, 296, 302, 309, 347, 448, 469, 472, 475, 503, 524, 532, 599, 642, 708; Adarand Constructors v. Peña, 406; Agostini v. Felton, 409; Florida v. Bostick, 483; Lynch v. Donnelly, 411; Maryland v. Craig, 541; National Endowment for the Arts v. Finley, 563; Pacific Mutual Life Insurance Co. v. Haslip, 580; Penry v. Lynaugh, 584; Richmond v. J. A. Croson Co., 597; Rutan v. Republican Party of Illinois, 611 O’Gorman and Young v. Hartford Fire Insurance Co., 576-577 Ohio v. Roberts, 367 Ohio v. Robinette, 483 Oklahoma, 245 Old Order Amish Church, 654 Olmstead v. United States, 275, 514, 577-578 O’Lone v. Estate of Shabazz, 309 Opinions, writing of, 27 Oregon v. Elstead, 248 Oregon v. Haas, 94 Oregon v. Mathiason, 247 Oregon v. Mitchell, 515 Original intent, 20 Orozco v. Texas, 247

The Bill of Rights

Orr v. Orr, 578-579 Orwell, George, 275 Osborne v. Ohio, 259, 579-580, 624 Overbreadth doctrine, 154 Oyama v. California, 229 Ozawa v. United States, 225 Pace v. Alabama, 530 Pacific Mutual Life Insurance Co. v. Haslip, 580 Palko v. Connecticut, 58, 63, 94, 235, 266, 331, 420, 581, 601 Papachristou v. City of Jacksonville, 446 Parental rights; Meyer v. Nebraska, 546-547; Pierce v. Society of Sisters, 585-586 Paris Adult Theatre v. Slaton, 150, 258 Parratt v. Taylor, 503 Patent, 296 Patronage; Rutan v. Republican Party of Illinois, 611 Patterson, Haywood, 222 Patterson, William, 708 Patterson v. McLean Credit Union, 609 Paul v. Davis, 179 Paxton’s Case, 274 Payne v. Tennessee, 581-582 Payton v. New York, 582 Peckham, Rufus W., 526, 708; Lochner v. New York, 526 Penn Central Transportation Co. v. City of New York, 583 Pennsylvania Coal Co. v. Mahon, 290, 357, 516 Pennsylvania v. Muniz, 248 Penry v. Lynaugh, 583-584

The Bill of Rights

Pentagon Papers, 188, 272, 570 People v. Ruggles, 136 Perez v. Brownell, 635 Perry Education Association v. Perry Local Educators’ Association, 124, 294 Perry v. Sindermann, 291 Personnel Administrator of Massachusetts v. Feeney, 584-585 Petition, right of, 263-266; and English Bill of Rights, 46; Hague v. Congress of Industrial Organizations, 497-498 Philadelphia Newspapers v. Hepps, 241 Physician-assisted suicide; Washington v. Glucksberg, 644 Pierce v. Society of Sisters, 277, 585586 Pitney, Mahlon, 709 Planned Parenthood League of Connecticut, 134, 181 Planned Parenthood of Southeastern Pennsylvania v. Casey, 60, 604 Planned Parenthood v. American Coalition of Life Activists, 255-256 Plessy v. Ferguson, 431-432 Plyler v. Doe, 586-587 Pointer v. Texas, 65, 587 Police powers, 51, 368, 499, 502, 555-556, 637, 649; Champion v. Ames, 442-443 Political party system, 325 Political questions; Massachusetts v. Mellon, 542-543 Pollak, Walter H., 490 Pornography. See Obscenity and pornography Postal Act of 1865, 163

Index / 807

Powell v. Alabama, 99, 171, 222, 421, 575, 587-588 Powell v. Texas, 600 Powell, Lewis F., Jr., 622, 709; Barker v. Wingo, 415; Batson v. Kentucky, 419; McCleskey v. Kemp, 533; Moore v. City of East Cleveland, 552; Solem v. Helm, 623; Stone v. Powell, 626; United States District Court, United States v., 639 Powers v. Ohio, 419 Prayer. See School prayer Precedent, 13 Preferred freedoms doctrine, 266; Murdock v. Pennsylvania, 557-558 President’s Commission on Civil Rights, 157 Press, freedom of, 195, 254, 334341; Cohen v. Cowles Media Co., 449; Grosjean v. American Press Co., 496-497; Masson v. New Yorker Magazine, 544; Miami Herald Publishing Co. v. Tornillo, 547-548; Near v. Minnesota, 565; Nebraska Press Association v. Stuart, 566-567; Richmond Newspapers v. Virginia, 596 Presser v. Illinois, 85, 588-589 Pretrial publicity and gag rule, 566 Preventive detention, 268-270 Printz v. United States, 55, 84, 115, 347, 529, 564, 589-590 Prior restraint, 145, 147-148, 270273, 340; Near v. Minnesota, 565; New York Times Co. v. United States, 569-572

808 / Index

Privacy, right of, 10, 87, 109, 181, 209, 273-279, 602; Bowers v. Hardwick, 426; Eisenstadt v. Baird, 473; Griswold v. Connecticut, 496; Hudson v. Palmer, 503; Minnesota v. Carter, 549-550; Moore v. City of East Cleveland, 552-553; Olmstead v. United States, 577-578 Privacy Act of 1974, 279 Privileges and immunities, 61, 279-283; and English Bill of Rights, 47; Slaughterhouse Cases, 619-621 Prize Cases, 51 Probable cause, 283-284 Procedural due process. See Due process, procedural Profiling; drug dealers, 90; racial, 650-651 Progressivism, 443, 499 Property rights, 284-293, 355; Barron v. Baltimore, 416-417 Public forum doctrine, 293-296, 362; Hague v. Congress of Industrial Organizations, 497-498 Public use doctrine, 296 Quartering of soldiers. See Soldiers, quartering of Quilici v. Village of Morton Grove, 86 Rabinowitz, United States v., 446 Racial profiling. See Profiling Randolph, Edmund, 31 Rape victims; privacy and, 274 R.A.V. v. City of St. Paul, 215-216, 366, 590-591 Reapportionment, 492

The Bill of Rights

Reasonable doubt, 267 Reconstruction, 51 Red Lion Broadcasting Co. v. Federal Communications Commission, 591 Redeeming social importance, 149 Redrup v. New York, 150, 258 Reed, Stanley F., 709; Louisiana ex rel. Francis v. Resweber, 529 Reed v. Reed, 592, 647 Regents of the University of California v. Bakke, 592-593 Regina v. Hicklin, 217-218, 607 Rehnquist, William H., 55, 60, 65, 70, 84, 95, 120-121, 140-141, 175, 182, 241, 260, 291, 302, 347, 469, 472, 548, 582, 596, 603, 610, 629, 642, 647, 709; Barnes v. Glen Theatre, 416; Boy Scouts of America v. Dale, 427; Brecht v. Abrahamson, 431; Cruzan v. Director, Missouri Department of Health, 460; DeShaney v. Winnebago County Department of Social Services, 466; Dolan v. City of Tigard, 467; Hustler Magazine v. Falwell, 506; Illinois v. Wardlow, 507; Lopez, United States v., 528; Michigan Department of State Police v. Sitz, 548; Minnesota v. Carter, 550; National League of Cities v. Usery, 564; Payne v. Tennessee, 582; Romer v. Evans, 604; Rostker v. Goldberg, 606; Rummel v. Estelle, 608; Rust v. Sullivan, 610; Rutan v. Republican Party of Illinois, 611; Washington v. Glucksberg, 644; Wisconsin v. Mitchell, 653

The Bill of Rights

Reidel, United States v., 259 Released time, 297, 506; Zorach v. Clauson, 661-662 Religion, establishment of, 5, 78, 196, 297-304, 411; Agostini v. Felton, 409; Edwards v. Aguillard, 469-470; Engel v. Vitale, 476-477; Epperson v. Arkansas, 477; Everson v. Board of Education of Ewing Township, 478-480; Illinois ex rel. McCollum v. Board of Education, 506-507; Lynch v. Donnelly, 532; Walz v. Tax Commission, 642 Religion, freedom of, 5, 78, 196, 304-311; Boerne v. Flores, 423424; Cantwell v. Connecticut, 438439; Church of Lukumi Babalu Aye v. Hialeah, 447-448; Davis v. Beason, 463; Employment Division, Department of Human Resources v. Smith, 475-476; Good News Club v. Milford Central School, 492-493; Minersville School District v. Gobitis, 548-549; Reynolds v. United States, 594-595; Sherbert v. Verner, 616-617; Wisconsin v. Yoder, 654 Religious Freedom Restoration Act, 310, 423, 476 Reno v. American Civil Liberties Union, 262, 594 Reply, right of, 547, 591 Reproductive rights; Eisenstadt v. Baird, 473; Skinner v. Oklahoma, 617-618. See also Birth control and contraception Republicanism, 37 Reserved powers, 11, 112

Index / 809

Restrictive covenants, 370; Corrigan v. Buckley, 454-455 Reversals of Court decisions by Congress, 424 Reynolds v. United States, 80, 305, 463, 594-595 Richmond Newspapers v. Virginia, 110, 596 Richmond v. J. A. Croson Co., 406, 486, 596-597 “Right to be let alone,” 274 Right to bear arms; and English Bill of Rights, 46; Presser v. Illinois, 588-589 Right to counsel. See Counsel, right to Right to die; Cruzan v. Director, Missouri Department of Health, 459-461 Robbins v. California, 605 Robel, United States v., 597-598 Roberts, Owen J., 421, 710; Betts v. Brady, 421; Butler, United States v., 437; Cantwell v. Connecticut, 439; Hague v. Congress of Industrial Organizations, 498; Mulford v. Smith, 556; Nebbia v. New York, 566; West Coast Hotel Co. v. Parrish, 649 Roberts v. United States Jaycees, 125, 567, 598-599 Robinson v. California, 64, 105, 599600, 609 Rochin v. California, 600-601 Roe v. Wade, 28, 59, 110, 182, 278, 601-603 Roman law, 15 Romer v. Evans, 209, 463, 604 Roosevelt, Franklin D., 227, 289

810 / Index

Rosenberg, Ethel and Julius, 188 Rosenberger v. University of Virginia, 300 Ross, United States v., 438, 604-605 Ross v. Moffitt, 223 Rostker v. Goldberg, 69, 606 Rotary International v. Rotary Club of Duarte, 125, 276 Roth v. United States, 149, 257, 436, 546, 606-608, 624; and Hicklin rule, 218 Rule of four, 26 Rule of law, 27 Rummel v. Estelle, 174, 450, 608609, 622 Runyon v. McCrary, 609 Rust v. Sullivan, 610-611 Rutan v. Republican Party of Illinois, 475, 611 Rutledge, Wiley B., Jr., 405, 710 Sable Communications v. Federal Communications Commission, 261, 365 Saenz v. Roe, 282, 621 Sakharov, Andrei, 270 Salaries; state employees, 564; teachers, 299 Salerno, United States v., 132 Sanford, Edward T., 710; Corrigan v. Buckley, 455; Gitlow v. New York, 490; Whitney v. California, 650 Sanger, Margaret, 133-134 Santa Clara Pueblo v. Martinez, 220 Santería, 447 Scalia, Antonin, 292, 309, 469-470, 511, 711; Cruzan v. Director, Missouri Department of Health,

The Bill of Rights

460; and due process, 423; Employment Division, Department of Human Resources v. Smith, 475; Kyllo v. United States, 521; Lucas v. South Carolina Coastal Council, 532; Maryland v. Craig, 541; National Endowment for the Arts v. Finley, 563; Pacific Mutual Life Insurance Co. v. Haslip, 580; Printz v. United States, 589; R.A.V. v. City of St. Paul, 590; Romer v. Evans, 604; Rutan v. Republican Party of Illinois, 611; Stanford v. Kentucky, 623; Whren v. United States, 651 Schacht v. United States, 353 Schad v. Borough of Mount Ephraim, 416 Schempp. See Abington School District v. Schempp Schenck v. Pro-Choice Network of Western New York, 354 Schenck v. United States, 29, 128, 159, 188, 195, 197, 200, 366, 429, 611-612 Schneckloth v. Bustamonte, 90, 482 Schneider v. Irvington, 530 School prayer, 301, 312-313; Abington School District v. Schempp, 403-404 Schumer, Charles, 256 Scott, Dred, 528, 613. See also Scott v. Sandford Scott, Henry, 218 Scott v. Illinois, 172, 413 Scott v. Sandford, 67, 107, 612-614 Search and seizure, 6, 88, 126, 190, 283, 313-318, 349, 559; Chimel v. California, 446-447;

The Bill of Rights

Ferguson v. City of Charleston, 480-481; Florida v. Bostick, 482483; Hudson v. Palmer, 503; Katz v. United States, 513-514; Kyllo v. United States, 520-521; Mapp v. Ohio, 538-539; Maryland v. Buie, 540-541; Michigan Department of State Police v. Sitz, 548; National Treasury Employees Union v. Von Raab, 564-565; Payton v. New York, 582; Skinner v. Railway Labor Executives Association, 618619; Terry v. Ohio, 631-632. See also Automobile searches Search warrant requirement, 89, 190, 318-320, 429; Marshall v. Barlow’s, 540; United States District Court, United States v., 638-639 Second Amendment, 5, 84-86, 391, 589; and English Bill of Rights, 46 Sedition Act of 1798, 271-272, 320-326 Sedition Act of 1918, 187 Seditious libel, 321, 326-328 Seeger, United States v., 166 Segregation; Bolling v. Sharpe, 424; Brown v. Board of Education, 431432; residential, 168 Selective Draft Law Cases, 165, 615616 Selective Training and Service Act of 1940, 166 Self-incrimination, immunity against, 6, 93, 246, 328-331, 434; Counselman v. Hitchcock, 455456; Griffin v. California, 495496; Kastigar v. United States,

Index / 811

512-513; Malloy v. Hogan, 538; Miranda v. Arizona, 550; Murphy v. Waterfront Commission of New York, 558; Twining v. New Jersey, 636-637 Seminole Tribe v. Florida, 55 Separation of powers, 33-35; Boerne v. Flores, 423 Seventeenth Amendment, 38, 395 Seventh Amendment, 8, 104, 235, 392 Seventh-day Adventist Church, 617 Shapiro v. Thompson, 59, 616 Shelley v. Kraemer, 435, 455, 531 Shelton v. Tucker, 120 Sheppard, Sam, 208 Sheppard-Towner Act, 542 Sherbert v. Verner, 59, 80, 307, 424, 475, 616-617, 654 Shiras, George, Jr., 181, 711 Sibron v. New York, 632 Silver platter doctrine, 191, 331332 Silverthorne Lumber Co. v. United States, 190 Sixth Amendment, 7, 99-103, 171, 342, 367, 392, 421; Taylor v. Louisiana, 628-629 Skinner v. Oklahoma, 277, 617-618 Skinner v. Railway Labor Executives Association, 565, 618-619 Slaughterhouse Cases, 53, 61, 281, 286, 545, 619-621; and privileges or immunities clause, 58 Slavery, 107, 286; Scott v. Sandford, 612-614

812 / Index

Smith Act, 78, 188, 202, 328, 332333, 464, 575, 657 Smith v. California, 199 Smith v. Goguen, 153 Smith v. Illinois, 247 Smyth v. Ames, 621 Social Security Act, 501, 624, 647 Sokolow, United States v., 90 Soldiers, quartering of, 6, 65, 87; and English Bill of Rights, 46 Solem v. Helm, 174, 450, 609, 622623 Solzhenitsyn, Aleksandr, 270 Souter, David H., 711; Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, 504 South Carolina v. Gathers, 582 South Dakota v. Dole, 347 South Dakota v. Opperman, 127 Southeastern Promotions, Ltd. v. Conrad (1975), 152 Spano v. New York, 543 Sparf and Hansen v. United States, 235 Speech, freedom of, 5, 63, 77, 119, 188, 195, 197, 254, 293, 334-341, 350; American Communications Association v. Douds, 411; Brandenburg v. Ohio, 429; Branzburg v. Hayes, 430; Burstyn v. Wilson, 435-436; Chaplinsky v. New Hampshire, 443-444; establishment clause, 299; Feiner v. New York, 480; Gitlow v. New York, 490-491; and Internet, 334, 338, 594; Kunz v. New York, 520; Lovell v. City of Griffin, 529-530; Minersville School District v. Gobitis, 548-549;

The Bill of Rights

National Endowment for the Arts v. Finley, 562-563; New York Times Co. v. United States, 569-572; Red Lion Broadcasting Co. v. Federal Communications Commission, 591; Reno v. American Civil Liberties Union, 594; Robel, United States v., 597-598; Roth v. United States, 606-608; Rust v. Sullivan, 610611; Rutan v. Republican Party of Illinois, 611; Schenck v. United States, 611-612; Terminiello v. Chicago, 630; Wisconsin v. Mitchell, 653. See also Unprotected speech Speech codes, 340 Speedy trial, 7, 99, 342; Barker v. Wingo, 415; Klopfer v. North Carolina, 517 Stack v. Boyle, 131 Standing; Orr v. Orr, 578-579 Stanford Daily. See Zurcher v. The Stanford Daily Stanford v. Kentucky, 623 Stanley v. Georgia, 259, 580, 624 Stare decisis, 13 State constitutions, 43, 70-72, 112; and Magna Carta, 177; and presumption of innocence, 268; and search and seizure, 315; and states’ rights, 348; and Virginia Bill of Rights, 73; and zoning, 368 State sovereignty; Printz v. United States, 589-590 State v. Coburn, 87 States’ rights, 113, 343-349; Cruikshank, United States v., 458459

The Bill of Rights

Stevens, John Paul, 141, 143, 183, 262, 282, 325, 467, 472, 503, 532, 541, 548, 580, 589, 596, 623, 658, 663, 711; BMW of North America v. Gore, 423; Boy Scouts of America v. Dale, 427; Ferguson v. City of Charleston, 481; First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482; Keystone Bituminous Coal Association v. DeBenedictis, 516; Kyllo v. United States, 521; Payton v. New York, 582; Reno v. American Civil Liberties Union, 594; Rutan v. Republican Party of Illinois, 611; Wallace v. Jaffree, 641 Steward Machine Co. v. Davis, 624625 Stewart, Potter, 150, 514, 598, 712; Chimel v. California, 446; Edwards v. South Carolina, 471; Gregg v. Georgia, 494; Harris v. McRae, 500; Katz v. United States, 514; Massiah v. United States, 543; Robinson v. California, 600; Runyon v. McCrary, 609 Stone, Harlan Fiske, 440, 442, 462, 549, 554, 712; Butler, United States v., 437; Darby Lumber Co., United States v., 114; DeJonge v. Oregon, 464; footnote four of Carolene Products Co., United States v., 59, 68, 439; Hirabayashi v. United States, 68; strict scrutiny doctrine, 20 Stone v. Graham , 301 Stone v. Powell, 625-626

Index / 813

Stop and frisk rule, 89, 276, 316, 320, 349-350; Illinois v. Wardlow, 507; Terry v. Ohio, 631-632 Story, Joseph, 109, 195, 712 Strauder v. West Virginia, 236, 626627 Street v. New York, 204 Strict scrutiny doctrine, 20, 57, 5960, 231-234, 406, 447, 458, 472, 476, 485-486, 494, 518, 586, 597 Stromberg v. California, 119, 204, 351, 491, 627-628 Strong, William, 627, 713; Legal Tender Cases, 523 Strunk v. United States, 342 Substantive due process. See Due process, substantive Subversive Activities Control Board, 597 Suitum v. Tahoe Regional Planning Agency, 360 Supreme Court, U.S.; and common law, 15-16; and constitutional interpretation, 3, 5, 17-25, 27; and Eighth Amendment, 105; and Fifth Amendment, 93-98; and First Amendment, 77-83; and Fourth Amendment, 88-92; justices, 35; justices and Bill and Rights, 693-720; and Ninth Amendment, 106-111; and Second Amendment, 84-86; and Seventh Amendment, 104; and Sixth Amendment, 99-103; and Tenth Amendment, 112-115; and Third Amendment, 87. See also individual cases and justices Suspect classifications, 484

814 / Index

Sutherland, George, 408, 713; Adkins v. Children’s Hospital, 408; Carter v. Carter Coal Co., 442; Frothingham v. Mellon, 485; Grosjean v. American Press Co., 497; Massachusetts v. Mellon, 542; Powell v. Alabama, 588; Tyson v. Banton, 637 Swain v. Alabama, 236, 419 Swayne, Noah H., 713 Sweatt v. Painter, 432 Swift v. Tyson, 16 “Switch in time that saved nine,” 649 Symbolic speech, 203, 340, 350354; Cohen v. California, 448; Eichman, United States v., 472473; Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, 503-504; R.A.V. v. City of St. Paul, 590-591; Stromberg v. California, 627-628; Texas v. Johnson, 632-633; Tinker v. Des Moines Independent Community School District, 634-635 Taft, William H., 578, 713; Adkins v. Children’s Hospital, 408; Carroll v. United States, 441; Olmstead v. United States, 578; Wolff Packing Co. v. Court of Industrial Relations, 656 Taft-Hartley Act, 198, 411 Takings clause, 6, 97, 285, 296, 354-361, 369, 444-445; Dolan v. City of Tigard, 466-467; First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 481-482; Keystone

The Bill of Rights

Bituminous Coal Association v. DeBenedictis, 516-517; Lucas v. South Carolina Coastal Council, 531-532; Penn Central Transportation Co. v. City of New York, 583 Talley v. California, 265 Talton v. Mayes, 219, 628 Taney, Roger Brooke, 49, 51, 114, 345, 614, 713; Scott v. Sandford, 107, 613-614 Taxation, 642 Taxing and spending clause, 501; Butler, United States v., 436-437; Frothingham v. Mellon, 485-486; McCray v. United States, 534-535; Steward Machine Co. v. Davis, 624-625 Taylor v. Kentucky, 267 Taylor v. Louisiana, 236, 413, 628629 Tennessee v. Garner, 629-630 Tenth Amendment, 11, 50, 106, 112-115, 345, 392, 462, 499; Lopez, United States v., 528-529; National League of Cities v. Usery, 563-564 Terminiello v. Chicago, 201, 630 Terry v. Ohio, 89, 275, 320, 350, 507, 631-632 Texas v. Johnson, 29, 205, 340, 351, 448, 472, 632-633 Texas v. White, 52, 344 Third Amendment, 6, 87, 391 Thomas, Clarence, 20, 292, 446, 493, 714; nomination hearings, 253; Romer v. Evans, 604 Thompson, Smith, 714 Thompson v. United States, 95

The Bill of Rights

Thornhill v. Alabama, 81, 264, 352, 633 Time v. Hill, 274, 633-634 Time, place, and manner regulations, 124, 361-363, 416, 439; Cox v. New Hampshire, 457 Tinker v. Des Moines Independent Community School District, 120, 352, 448, 634-635 Tison v. Arizona, 144 Todd, Thomas, 714 Toomer v. Witsell, 281 Travel, right to; Edwards v. California, 470-471; Kent v. Dulles, 515-516; Shapiro v. Thompson, 616 Treaties, 25, 36, 49; Missouri v. Holland, 551-552; Native American, 527-528 Treaty of Medicine Lodge, 527 Trial by jury. See Jury, trial by Trimble, Robert, 714 Trop v. Dulles, 105, 635 Truman, Harry S., 219, 243, 333 Twenty-fifth Amendment, 38, 399 Twenty-second Amendment, 38, 398 Twining v. New Jersey, 93, 331, 405, 636-637 Tyson v. Banton, 637 Ullman v. United States, 638 Unalienable rights, 42 Unenumerated rights, 106 United Public Workers v. Mitchell, 109 United States District Court, United States v., 638-639

Index / 815

United States Postal Service v. Greenburgh Civic Associations, 124, 295 United States v. . . . See under defendants’ names United Steelworkers of America v. Weber, 510 University of Pennsylvania v. Equal Employment Opportunity Commission, 122 Unprotected speech, 162, 257, 364-367 Ursery, United States v., 96, 176, 639 Use of force; Tennessee v. Garner, 629 Valentine v. Chrestensen, 422 Van Devander, Willis, 714 Vernonia School District v. Acton, 90, 619 Vinson, Fred M., 78, 198-199, 201202, 243, 432, 465, 520, 630, 714; American Communications Association v. Douds, 412; Dennis v. United States, 464; Feiner v. New York, 480 Virginia Declaration of Rights, 7374 Virginia Pharmacy Board v. Virginia Consumer Council, 418 Vitek v. Jones, 179 Volstead Act, 522 Vote, right to; Davis v. Beason, 463; Katzenbach v. Morgan, 514-515 Voting Rights Act of 1965, 515 Wade, United States v., 640 Wagner Act, 170, 404

816 / Index

Waite, Morrison R., 595, 714; Cruikshank, United States v., 459; Munn v. Illinois, 557; Reynolds v. United States, 595 Wallace v. Jaffree, 301, 313, 640-642 Walters v. National Association of Radiation Survivors, 265 Walz v. Tax Commission, 642 War and civil liberties, 229 War powers; Korematsu v. United States, 518-519 Ward v. Village of Monroeville, 179 Warden v. Hayden, 429 Warren, Charles, 274 Warren, Earl, 245, 425, 598, 715; Bolling v. Sharpe, 425; Brown v. Board of Education, 432-433; Klopfer v. North Carolina, 517; Loving v. Virginia, 531; Miranda v. Arizona, 550; Robel, United States v., 598; Trop v. Dulles, 635; Watkins v. United States, 645 Washington, Bushrod, 58, 280, 322, 715 Washington, George, 113, 185 Washington v. Davis, 642-643 Washington v. Glucksberg, 460, 644 Washington v. Texas, 65 Watkins v. United States, 414, 644645 Wayne, James M., 715 Weeks v. United States, 91, 190, 275, 315, 332, 645-646, 655 Weems v. United States, 138, 174, 609, 646-647 Weinberger v. Wiesenfeld, 647 Welch v. Swasey, 370 Welsh v. United States, 166

The Bill of Rights

West Coast Hotel Co. v. Parrish, 55, 170, 527, 554, 648-649 West Covina v. Perkins, 178 West Virginia State Board of Education v. Barnette, 204, 351, 549 Whalen v. Roe, 279 White v. Illinois, 367, 542 White, Byron R., 94, 140, 148, 182183, 260, 279, 289, 361, 416, 476, 478, 496, 508, 510, 538, 543, 548, 571-572, 582, 590-591, 596, 598, 600, 603, 605, 624, 626, 635, 639-640, 662, 715; Bowers v. Hardwick, 426; Branzburg v. Hayes, 430; Cohen v. Cowles Media Co., 449; Coker v. Georgia, 450; Duncan v. Louisiana, 468; Leon, United States v., 525; Maryland v. Buie, 541; New York State Club Association v. City of New York, 568; New York v. Ferber, 573; Osborne v. Ohio, 580; Taylor v. Louisiana, 629; Tennessee v. Garner, 629; Washington v. Davis, 643; Woodson v. North Carolina, 657; Zurcher v. The Stanford Daily, 662 White, Edward D., 615, 716; Lone Wolf v. Hitchcock, 527; McCray v. United States, 535; Selective Draft Law Cases, 615; Talton v. Mayes, 628 Whitney Benefits v. United States, 358 Whitney v. California, 119, 201, 429, 649-650 Whittaker, Charles E., 492, 539, 716

The Bill of Rights

Whren v. United States, 650-651 Wickard v. Filburn, 556 Widmar v. Vincent, 295, 300 Wieman v. Epdegraff, 119, 245 Wilkins, Roy, 560 William of Orange, 45 Williams, United States v., 96 Williams v. Florida, 101, 237, 509, 651-652 Williams v. Mississippi, 652-653 Williamson v. Lee Optical Co., 231 Wilson, James, 113, 716 Winship, In re, 235 Wisconsin v. Mitchell, 216-217, 591, 653 Wisconsin v. Yoder, 80, 308, 654 Witherspoon v. Illinois, 139, 235 Witnesses, confrontation of, 7, 367-368; Maryland v. Craig, 541542 Wolf v. Colorado, 65, 88, 183, 190, 315, 332, 655 Wolff Packing Co. v. Court of Industrial Relations, 637, 656 Wolston v. Reader’s Digest Association, 569 Women’s movement, 601-602; and Native Americans, 220 Wong Kim Ark, United States v., 225 Woodbury, Levi, 716 Woods, William B., 588, 716; Presser v. Illinois, 589 Woodson v. North Carolina, 141, 495, 656-657

Index / 817

Workers’ rights, 168, 404, 408, 525, 648 World War II, 226; Japanese American relocation, 224-230, 233, 518-519; war crimes trials, 255 World Wide Web, 255, 338. See also Internet; Nuremberg Files, 256 Yasui v. the United States, 228 Yates v. United States, 81, 125, 465, 657-658 Yee v. Escondido, 97 Yellow dog contracts, 404 Yick Wo v. Hopkins, 652 Young v. American Mini Theatres, 260, 658 Younger v. Harris, 659-660 Zadvydas v. Davis, 660-661 Zenger, John Peter, 326 Zones of privacy, 275, 277 Zoning, 287, 368-371; First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 481-482; Young v. American Mini Theatres, 658 Zorach v. Clauson, 297, 506, 661662 Zurcher v. The Stanford Daily, 254, 662-663